EXHIBIT 99.2 TO FORM 8-K
EXHIBIT E-1 TO THE AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
PUMA AFFILIATE POOLING AGREEMENT dated as of December __, 1999,
between PUMA TECHNOLOGY, INC., a Delaware corporation ("Puma"), and the
undersigned shareholder (the "Shareholder") of PUMA who is a signatory hereto.
Simultaneously with the execution and delivery of this Agreement,
Puma, NetMind Technologies, Inc., a California corporation ("NetMind"), and
Rocket Kitty Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Puma ("Merger Sub"), have entered into a Agreement and Plan of
Merger and Reorganization (the "Reorganization Agreement"), pursuant to which
Merger Sub is merging with and into NetMind (the "Merger") and the NetMind
Shareholders are receiving shares of common stock of Parent. The transactions
contemplated by the Reorganization Agreement are intended to be accounted for
as a pooling of interests pursuant to Opinion No. 16 of the Accounting
Principals Board. All capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the Reorganization Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be
derived from the Exchange and of the mutual covenants contained in this
Agreement, the parties agree as follows:
1. TRANSFER RESTRICTIONS.
(a) The Shareholder may be deemed to be an "affiliate" of Puma
within the meaning of Rule 145 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), and Accounting Series Release No. 130, as
amended ("Release No. 130"), Accounting Series Release No. 135 and Staff
Accounting Bulletin No. 76 of the Securities and Exchange Commission (the
"Commission"), although nothing contained herein should be construed as an
admission thereof nor as a waiver of any right Shareholder may have to object
to any claim that Shareholder is such an affiliate on or after the date
hereof.
(b) The Shareholder will not sell, exchange, transfer, pledge, ,
distribute, make any gift or otherwise dispose of or grant any option,
establish any "short" or put-equivalent position with respect to or enter
into any similar transaction (through derivatives or otherwise), dispose of
or otherwise reduce his risk, relative to any shares of or options to
purchase shares of common stock, $.001 par value, of Puma (the "Puma Shares")
beneficially owned by the Shareholder during the 30-day period prior to the
Closing (as defined in the Reorganization Agreement).
(c) The Shareholder shall not sell, exchange, transfer, pledge,
distribute, make any gift or otherwise dispose of or grant any option,
establish any "short" or put-equivalent position with respect to or enter
into any similar transaction (through derivatives or otherwise) or dispose of
or otherwise reduce his risk relative to any Puma Shares until such time
after the Closing as financial results covering at least 30 days of the
combined operations of NetMind and
Puma after the Closing have been published, within the meaning of Release No.
130, by Puma in an effective registration statement, Annual Report on Form
10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K filed with
the Securities and Exchange Commission, or any publicly disclosed quarterly
earnings report or press release or other authorized public disclosure by
Puma that includes the combined results of operations of Puma and NetMind.
Puma, at its discretion, may cause stop transfer orders to be placed with its
transfer agent with respect to certificates for the Puma Shares.
Notwithstanding the foregoing, Shareholder will not be prohibited by the
foregoing from selling or disposing of shares so long as such sale or
disposition is in accordance with the "de minimis" test set forth in SEC
Staff Accounting Bulletin No. 76.
(d) During the period described in Section 1(c) above, subject to
providing written notice to Puma and the other restrictions set forth below,
and to the extent permitted under the "pooling of interests" accounting rules
and applicable securities laws, Shareholder will be permitted to sell up to
10% of Puma Shares held by Shareholder or to make charitable contributions or
bona fide gifts of the Puma Shares owned by Shareholder, subject to the same
restrictions. Such sales or other transfer shall subject to an aggregate
limitation on sales and other transfers for all affiliates of NetMind and
Puma of not more than 1% of the number of shares of outstanding Common Stock
of Puma. Prior to making any such sale, charitable contributions or gifts,
Shareholder will be required to obtain Puma's prior written approval.
Shareholder shall give Puma not less than five (5) business days notice prior
to making any sales, charitable contributions or gifts as contemplated under
this Section 1(d), Shareholder will provide any information reasonably
requested by Puma or Puma's accounting firm regarding such sale, charitable
contribution or give, and Shareholder will refrain from making such sales,
charitable contributions or gifts if Shareholder does not obtain Puma's prior
written approval. Puma may withhold such approval it it determines, after
consultation with its accounting firm, that such transaction could preclude
the Exchange from being accounted for as a "pooling of interests." The 10%
of Puma Shares shall be calculated in accordance with SEC Accounting Series
Release No. 135 as amended by Staff Accounting Bulletin No. 76.
(e) Notwithstanding anything to the contrary contained in this
Agreement, the Shareholder may transfer Puma Shares to a trust established
for the benefit of the Shareholder and/or for the benefit of one or more
members of the Shareholder's family, or make a bona fide gift of Puma Shares
to one or more members of the Shareholder's family, provided that in the case
of a transfer or gift pursuant to this Section 1, a transferee of such shares
agrees to be bound by the limitations set forth in this Agreement.
2. BENEFICIAL OWNERSHIP OF STOCK. Except as set forth on the last page
of this Agreement, Shareholder does not beneficially own or hold voting power
over any shares of Puma common stock or any other equity securities of Puma
or any options, warrants or other rights to acquire any equity securities of
Puma.
3. NOTICES. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth beneath the name
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of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto):
(a) if to Puma :
Puma Technology, Inc.
0000 Xxxxx Xxxxx Xxxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
General Counsel Associates LLP
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Shareholder, to the address set forth below the
Shareholder's signature on the last page of this Agreement.
4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
5. ENTIRE AGREEMENT. This Agreement, the Reorganization
Agreement, the Exhibits thereto and any other document delivered in
connection therewith contain the entire understanding of the parties hereto
in respect of the subject matter hereof, and supersede all prior negotiations
and understandings, oral or written, between the parties with respect to the
subject matter hereof.
6. ATTORNEY'S FEES. In the event of any legal action or
proceeding to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, whether or
not the proceeding results in a final judgment.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable
by, and shall inure to the benefit of and be binding upon, the parties and
their respective successors and assigns. As used herein, the term "successors
and assigns" shall mean, where the context so
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permits, heirs, executors, administrators, trustees and successor trustees
and personal and other representatives.
8. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts made and to be performed therein.
9. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
10. THIRD PARTY RELIANCE. Counsel to and accountants for the
parties shall be entitled to rely upon this Agreement.
11. REMEDIES. The Shareholder acknowledges and agrees that Puma's
remedy at law for a breach or threatened breach of any of the provisions of
Section 1 would be inadequate. In recognition of this fact, in the event of
a breach by the Shareholder of any of the provisions of Section 1, as
determined by Puma in its sole discretion acting in good faith, the
Shareholder agrees that, in addition to Puma's remedy at law, Puma, without
posting any bond, shall be entitled to obtain, and the Shareholder agrees not
to oppose Puma's request for, equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction
or any other equitable remedy which may then be available. Nothing herein
contained shall be construed as prohibiting Puma from pursuing any other
remedies available to it for such breach or threatened breach. In addition,
Shareholder agrees that upon any violation of this Agreement, that
Shareholder will disgorge to Puma any profits realized by Shareholder from
such transaction which violated this Agreement.
12. EFFECTIVENESS OF AGREEMENT. This Agreement shall become
effective at the Closing. In the event that the Reorganization Agreement
shall be terminated in accordance with Section 9.1 of the Reorganization
Agreement, this Agreement shall simultaneously therewith cease and terminate
and be of no further force or effect and no party hereunder shall have any
rights or obligations of any nature whatsoever hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Puma
Affiliate Pooling Agreement to be executed and delivered as of the date first
above written.
PUMA TECHNOLOGY, INC.
By:
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Name:
Title:
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SIGNATURE PAGE TO THE
PUMA AFFILIATE POOLING AGREEMENT BETWEEN
PUMA TECHNOLOGY, INC.
AND THE SHAREHOLDER
SHAREHOLDER
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(Signature)
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(Print Name)
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(Print Title)*
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(Print Name of Company)*
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(Print Address)
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(Print Fax Number)
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* Leave blank if individual.
Number of shares of Puma common stock beneficially owned by Shareholder:
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Number of shares of Puma common stock subject to options beneficially owned
by Shareholder:
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