EXHIBIT B
TO THE MERGER AGREEMENT
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 14, 1999 (this "Voting
Agreement"), by and between Xxxxxx Xxxxxxxxxxx, a Delaware corporation
("Parent"), and ___________________________________, a ______________
("Shareholder").
WHEREAS, Parent, Pulsepoint Communications, a California corporation
(the "Company"), and Shellco Inc., a newly-formed California corporation and a
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direct, wholly-owned subsidiary of Parent ("Merger Sub"), have contemporaneously
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with the execution of this Voting Agreement entered into an Agreement and Plan
of Merger of even date herewith (as may be amended from time to time, the
"Merger Agreement") which provides, among other things, that Merger Sub shall be
----------------
merged (the "Merger") with and into the Company pursuant to the terms and
------
conditions thereof;
WHEREAS, as an essential condition and inducement to Parent to enter
into the Merger Agreement and in consideration therefor, the undersigned
Shareholder and Parent have agreed to enter into this Voting Agreement; and
WHEREAS, as of the date hereof, Shareholder owns of record and
beneficially the shares of common stock, no par value, of the Company (the
"Company Common Stock") and the shares of series B convertible preferred stock,
--------------------
no par value, of the Company (the "Preferred Stock" and collectively with the
Company Common Stock, the "Company Stock") set forth opposite its name on
--------------
Schedule A hereto and desires to enter into this Agreement with respect to such
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shares of Company Stock.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Merger Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. Shareholder hereby agrees to (a)
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appear, or cause the holder of record on any applicable record date (the "Record
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Holder") to appear, for the purpose of obtaining a quorum at any annual or
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special meeting of shareholders of the Company and at any adjournment thereof at
which matters relating to the Merger, the Merger Agreement or any transaction
contemplated thereby are considered and (b) vote, or cause the Record Holder to
vote, in person or by proxy, all of the shares of the Company Stock owned by
Shareholder, or with respect to which such Shareholder has or shares voting
power or control, and all of the shares of Company Stock which shall, or with
respect to which voting power or control shall, hereafter be acquired by such
Shareholder (collectively, the "Shares") in favor of the Merger, the Merger
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Agreement and the transactions contemplated by the Merger Agreement (in each
case as provided for in the Merger Agreement as in effect on the date hereof and
including amendments thereto that do not effect a change to the transactions
contemplated thereby as of the date hereof that would materially and adversely
affect the Shareholder).
Section 1.2. Irrevocable Proxy. As security for Shareholder's
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obligations under Section 1.1 hereof, Shareholder hereby irrevocably constitutes
and appoints Parent as his or its attorney and proxy in accordance with the
provisions of Sections 705 and 706 of the California General Corporation Law,
with full power of substitution and resubstitution, to vote the Shares at any
annual or special meeting of shareholders of the Company, however called, as and
to the extent provided in clauses (a) and (b) of Section 1.1 hereof. THIS PROXY
AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Shareholder
hereby revokes all other proxies and powers of attorney with respect to his or
its Shares that he or it may have heretofore appointed or granted, and no
subsequent proxy or power of attorney shall be granted (and if granted, shall
not be effective) by Shareholder with respect thereto, other than for the sole
purpose of voting the Shares as contemplated by Section 1.1 hereof.
Section 1.3 No Ownership Interest. Nothing contained in this Voting
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Agreement shall be deemed to vest in Parent any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain and belong to
Shareholder, and Parent shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
the Company or exercise any power or authority to direct Shareholder in the
voting of any of the Shares, except as otherwise provided herein, or the
performance of Shareholder's duties or responsibilities as a shareholder of the
Company.
Section 1.4 No Inconsistent Agreements. Shareholder hereby covenants
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and agrees that, except as contemplated by this Voting Agreement and the Merger
Agreement, Shareholder (a) has not entered, and shall not enter at any time
while this Voting Agreement remains in effect, into a voting agreement with
respect to the Shares; (b) has not deposited and shall not deposit at any time
while this Voting Agreement remains in effect, any Shares into a voting trust;
(c) has not granted, and shall not grant at any time while this Voting Agreement
remains in effect, a proxy, power of attorney or other authorization or consent,
in any case set out in paragraphs (a) through (c) which is inconsistent with
this Voting Agreement; and (d) shall not take any action that would make any
representation or warranty of Shareholder contained herein untrue or incorrect
or have the effect of preventing or disabling Shareholder from performing his or
its obligations under this Voting Agreement.
ARTICLE II
TRANSFER; CONVERSION
Section 2.1 Transfer of Title.
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(a) Shareholder hereby covenants and agrees that such Shareholder
will not, except as provided in Section 2.2 hereof, prior to the termination of
this Voting Agreement, either directly or indirectly, offer or otherwise agree
to sell, assign, pledge, hypothecate, transfer, exchange, convert or dispose
("Transfer") of any Shares or options to purchase Company Common Stock
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("Options") or any other securities or rights convertible into or exchangeable
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for shares of Company Common Stock, owned either directly or indirectly by
Shareholder or with respect to which Shareholder has the power of disposition,
whether now or hereafter acquired,
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without the prior written consent of Parent (provided nothing contained herein
will be deemed to restrict the exercise of Options), unless the Person to whom
Shares or Options have been sold, assigned, pledged, hypothecated, transferred,
exchanged or disposed agrees to be bound by this Voting Agreement as if a party
hereto.
(b) Shareholder hereby agrees and consents to the entry of stop
transfer instructions by the Company against the transfer of any Shares
inconsistent with the terms of Section 2.1(a) or the Section 2.2 hereof.
Section 2.2 Conversion. (a) Shareholder hereby agrees that it will
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not convert any shares of Preferred Stock held by it during the term of this
Voting Agreement except as follows: (i) such shares of Preferred Stock shall be
converted in accordance with the provisions of the letter from the undersigned
dated as of the date hereof to Xxxxxx Xxxxxxxxxxx and PulsePoint Communications
(the "Letter Agreement") and (ii) such shares of Preferred Stock may be
converted at any time in an automatic conversion pursuant to Section 4(l)(2) and
(3) of the Company's Certificate of Determination of Rights, Preferences,
Privileges and Restriction of the Preferred Stock (a "Forced Conversion").
(b) Shareholder hereby agrees to cause a Forced Conversion of all
shares of Preferred Stock held by all holders thereof, such conversion to be
effective immediately upon approval of the Merger by the holders of the Company
Common Stock and the holders of the Preferred Stock at the meeting of the
shareholders of the Company called in connection with the Merger. Promptly after
the date hereof, Shareholder shall execute a conversion letter substantially in
the form of the letter attached hereto as Exhibit I, and shall deliver such
letter to the Company along with stock certificates and such other documents and
instruments as may be necessary to effect such conversion under this Voting
Agreement and the Letter Agreement, such documents to be held in escrow by the
Company until satisfaction of conditions precedent hereunder or under the Letter
Agreement, as the case may be.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent as follows:
Section 3.1 Authority Relative To This Agreement. Shareholder is
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competent to execute and deliver this Voting Agreement and the Letter Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Voting Agreement, the
Letter Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary action on the part of
Shareholder, and no other proceedings on the part of Shareholder are necessary
to authorize this Voting Agreement, the Letter Agreement or to consummate the
transactions contemplated hereby. Each of this Voting Agreement and the Letter
Agreement has been duly and validly executed and delivered by Shareholder and,
assuming the due authorization, execution and delivery by all other parties
thereto, constitutes a legal, valid and binding obligation of Shareholder,
enforceable against such Shareholder in accordance with its terms.
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Section 3.2 No Conflict. No authorization, consent or approval of,
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or filing with, any court or any public body or authority is necessary for the
consummation by Shareholder of the transactions contemplated by this Voting
Agreement and the Letter Agreement. The execution and delivery of this Voting
Agreement and the Letter Agreement by Shareholder does not, and the performance
of this Voting Agreement and the Letter Agreement by Shareholder shall not,
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on, any of the Shares or Options pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Shareholder is a
party or by which Shareholder or the Shares or Options are bound or affected.
Section 3.3 Title to the Shares. The Shares and Options held by
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Shareholder are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on
Shareholder's voting rights, charges and other encumbrances of any nature
whatsoever, and Shareholder has not appointed or granted any proxy, which
appointment or grant remains effective, with respect to the Shares.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 No Solicitation. From the date hereof until the
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Effective Time (as defined in the Merger Agreement) or, if earlier, the
termination of the Merger Agreement, Shareholder shall not (whether directly or
indirectly through advisors, agents or other intermediaries) (a) solicit,
initiate or encourage any Company Acquisition Proposal (as also so defined) or
(b) engage in discussions or negotiations with, or disclose any non-public
information relating to the Company or its Subsidiaries to, any Person (as also
so defined) that has made a Company Acquisition Proposal or has advised
Shareholder, or to his knowledge, any other shareholder of the Company, that
such Person is interested in making a Company Acquisition Proposal.
Section 4.2 Termination. This Agreement shall automatically
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terminate upon the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms or (b) the Effective Time. Upon such
termination, no party shall have any further obligations or liabilities
hereunder, provided that no such termination shall relieve either party from
liability for any breach of this Voting Agreement or the Letter Agreement prior
to such termination.
ARTICLE V
MISCELLANEOUS
Section 5.1 Enforcement of Agreement. The parties hereto agree that
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irreparable damage would occur in the event that any of the provisions of this
Voting Agreement were not performed in accordance with its specified terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Voting
Agreement and to specific performance of the terms and provisions hereof in
addition to any other remedy to which they are entitled at law or in equity.
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Section 5.2 Successors and Affiliates; No Third Party Beneficiaries.
-------------------------------------------------------
Except pursuant to a Transfer permitted by Section 2.1 hereof, neither this
Voting Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to the
preceding sentence, this Voting Agreement and the Letter Agreement shall inure
to the benefit of and shall be binding upon the parties hereto and their
respective heirs, legal representatives and permitted assigns. If Shareholder
shall at any time hereafter acquire ownership of, or voting power with respect
to, any additional Shares in any manner, by operation of law or otherwise, such
Shares shall be held subject to all of the terms and provisions of this Voting
Agreement and the Letter Agreement. Without limiting the foregoing, Shareholder
specifically agrees that the obligations of Shareholder hereunder shall not be
terminated by operation of law, whether by death or incapacity of Shareholder or
otherwise.
Section 5.3 Entire Agreement. This Voting Agreement, together with
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the Letter Agreement and the Affiliate Agreement (as defined in the Merger
Agreement), if and to the extent entered into by the Shareholder and Parent,
constitute the entire agreement among Parent and Shareholder with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among Parent and Shareholder with respect to the subject
matter hereof.
Section 5.4 Captions and Counterparts. The captions in this Voting
--------------------------
Agreement are for convenience only and shall not be considered a part of or
affect the construction of interpretation of any provision of this Voting
Agreement. This Voting Agreement may be executed in several counterparts, each
of which shall constitute one in the same instrument. Each counterpart may
consist of a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
Section 5.5 Amendment. This Voting Agreement may not be amended
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except by an instrument in writing signed by the parties hereto.
Section 5.6 Waivers. Except as provided in this Voting Agreement, no
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action taken pursuant to this Voting Agreement, including without limitation any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Voting Agreement. The
waiver by any party hereto of a breach of any provision hereunder shall not
operate or be construed as a wavier of any prior or subsequent breach of the
same or any other provision hereunder.
Section 5.7 Severability. If any term or other provision of this
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Voting Agreement is invalid, illegal or incapable of being enforced by any rule
of law, or public policy, all other conditions and provisions of this Voting
Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Voting Agreement so as to effect the original intent of the parties as
closely as possible to the fullest
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extent permitted by applicable law in a mutually acceptable manner in order that
the terms of this Voting Agreement remain as originally contemplated to the
fullest extent possible.
Section 5.8 Notices. All notices and other communications given or
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made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice):
If to Shareholder:
________________________
________________________
________________________
Attn: ____________
Telephone: ____________
Facsimile: ____________
With a copy to:
________________________
________________________
________________________
Attn: ____________
Telephone: ____________
Facsimile: ____________
If to Parent:
Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx Xxxxxxxxx, Xx.
Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Section 5.9 Governing Law. This Voting Agreement shall be governed
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by, and construed in accordance with, the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law.
Section 5.10 Jurisdiction. Each of the parties hereto (i) consents
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to submit itself to the personal jurisdiction of any Federal Court located in
the State of Delaware or any Delaware State Court in the event any dispute
arises out of this Voting Agreement or any of the transactions contemplated by
this Voting Agreement; (ii) agrees that it shall not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
Court, and (iii) agrees that it shall not bring any action relating to this
Voting Agreement or any of the transactions contemplated by this Voting
Agreement in any Court other than a Federal Court sitting in the State of
Delaware or a Delaware State Court.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Voting Agreement to be duly executed as of the date first written above.
XXXXXX XXXXXXXXXXX
By:____________________________
Name:__________________________
Title:_________________________
SHAREHOLDER
By:____________________________
Name:__________________________
Title:_________________________
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SCHEDULE A
Shareholder Name Company Common Stock Held Company Series B Preferred Stock Held
---------------- ------------------------- -------------------------------------
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EXHIBIT I
FORM OF CONVERSION LETTER
[date]
PulsePoint Communications
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Secretary
RE: Series B Convertible Preferred Stock of PulsePoint
Communications (the "Company") -- Automatic Conversion
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Ladies and Gentlemen:
This letter is being delivered to you in connection with the Voting
Agreements dated as of June __, 1999 by and among each of the undersigned and
Xxxxxx Xxxxxxxxxxx. The undersigned hold shares of the above-referenced
Preferred Stock (the "Preferred Stock") in excess of fifty percent of the
outstanding shares of such Preferred Stock.
Notice is hereby given pursuant to Section 4(l)(2) of the
Certificate of Determination of Rights, Preferences, Privileges and Restrictions
of Series B Convertible Preferred Stock of the Company that the undersigned
shall cause an automatic conversion of all shares of Preferred Stock under such
Section, such conversion to be effective immediately upon the occurrence of the
approval of the Merger defined below by the shareholders of the Company at the
shareholder's meeting called by the Company to approve the Merger. No automatic
conversion shall be deemed to have occurred until such time as the foregoing
condition has occurred.
The term "Merger" means the merger of Shellco Inc., a wholly owned
subsidiary of Xxxxxx Xxxxxxxxxxx, with and into the Company as contemplated by
the Agreement and Plan of Merger dated as of June __, 1999 by and among Unisys,
Shellco Inc. and the Company.
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This letter may be executed in one or more counterparts, each of
which shall constitute one and the same instrument. Each counterpart may consist
of a number of copies hereof signed by less than all, but together signed by all
the parties hereto.
Sincerely,
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EXHIBIT C
TO THE MERGER AGREEMENT
ARTICLES OF INCORPORATION
OF
SHELLCO INC.
Name
----
One: The name of the corporation is: SHELLCO INC.
Purpose
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Two: The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the California
Corporations Code.
Agent for Service
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Three: The name of this corporation's initial agent for service of process
is CT Corporation System, 000 Xxxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, XX
00000.
Authorized Shares
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Four: This corporation is authorized to issue only one class of shares of
stock; and the total number of shares which this corporation is authorized to
issue is one thousand (1,000) shares of common stock, no par value.
Director Liability
------------------
Five: The liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law.
Indemnification of Agents
-------------------------
Six: This corporation is authorized to provide indemnification of agents
(as defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits set forth in Section 204 of the California Corporations Code with
respect to actions for breach of duty to the corporation and its shareholders.
Date: June 11, 1999.
______________________________
Xxxx Xxxxx
Incorporator
EXHIBIT D
TO THE MERGER AGREEMENT
FORM OF COMPANY AFFILIATE LETTER
--------------------------------
______________, _____
Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
PulsePoint Communications
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, [each] a holder of shares of common stock, no par value
per share (the "Company Common Stock") and shares of preferred stock, no par
----------------------
value per share (the "Preferred Stock"), of PulsePoint Communications, a
----------------
California corporation (the "Company"), has been advised that as of the date
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hereof, the undersigned may be deemed to be an "affiliate" of the Company, as
the term "affiliate" is (i) defined for purposes of paragraphs (c) and (d) of
Rule 145 of the Rules and Regulations of the Securities and Exchange Commission
(the "Commission") and/or (ii) used in and for purposes of Accounting Series
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Releases 130 and 135, as amended, of the Commission.
The undersigned has been further advised that pursuant to the terms of the
Agreement and Plan of Merger, dated as of June 14, 1999 (the "Merger
------
Agreement"), by and between the Company, Xxxxxx Xxxxxxxxxxx, a Delaware
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corporation ("Parent"), and Shellco Inc., a California corporation and a wholly
------
owned subsidiary of Parent ("Shellco"), Shellco will merge with and into the
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Company, and as a result of such merger (the "Parent Merger"), the undersigned
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will receive shares of Parent Common Stock (as defined in the Merger Agreement)
in exchange for shares of Company Common Stock and Preferred Stock owned by the
undersigned.
1. The undersigned represents, warrants and covenants that the
undersigned:
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A. Has read carefully this letter and discussed applicable
limitations upon the ability of the undersigned to sell, transfer or
otherwise dispose of Parent Common Stock to the extent the undersigned
believes necessary with counsel of the undersigned or counsel for the
Company.
B. Has been advised that the issuance of Parent Common Stock to the
undersigned pursuant to the Merger will be registered with the Commission
under the Act on a Registration Statement on Form S-4. However, the
undersigned has also been advised that, since at the time the Merger
Agreement, and the Merger will be submitted for a vote of the stockholders
of the Company, the undersigned may be deemed to have been an affiliate of
the Company and the distribution by the undersigned of Parent Common Stock
has not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), the undersigned may not sell, transfer or otherwise
dispose of Parent Common Stock issued to the undersigned in the Merger,
unless (i) such sale, transfer or other disposition has been registered
under the Securities Act, (ii) such sale, transfer or other disposition is
made in conformity with the volume and other limitations of Rule 145
promulgated by the Commission under the Securities Act, or (iii) the
undersigned delivers an opinion of counsel reasonably acceptable to
Parent, or a "no-action" or interpretive letter of the Commission is
furnished to Parent, stating that, such sale, transfer or other
disposition is otherwise exempt from registration under the Securities
Act.
C. Understands that Parent is under no obligation to register the
sale, transfer or other disposition of Parent Common Stock by the
undersigned or on behalf of the undersigned under the Securities Act or to
take any other action necessary in order to make compliance with an
exemption from such registration available.
D. Also understands that Parent may give stop transfer instructions
to its transfer agent with respect to Parent Common Stock to enforce the
restrictions on the undersigned set forth herein and that it reserves the
right to place on the certificates for Parent Common Stock issued to the
undersigned, or any substitutions therefor, a legend stating in substance:
"The securities represented by this certificate have been issued in
a transaction to which Rule 145 promulgated under the Securities Act of
1933 applies and may only be sold or otherwise transferred in compliance
with the requirements of Rule 145 or pursuant to a registration statement
under said Act or an exemption from such registration."
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E. Also understands that unless the transfer by the undersigned of
Parent Common Stock of the undersigned has been registered under the Act
or is a sale made in conformity with the provisions of Rule 145, Parent
reserves the right to put the following legend on the certificates issued
to transferees of the undersigned:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 and were acquired from a
person who received such shares in a transaction to which Rule 145
promulgated under the Securities Act of 1933 applies. The securities have
been acquired by the holder not with a view to, or for resale in
connection with, any distribution thereof within the meaning of the
Securities Act of 1933 and may not be sold, pledged or otherwise
transferred except in accordance with an exemption from the registration
requirements of the Securities Act of 1933."
F. Further represents, warrants and covenants that, from the date
that is 30 days prior to the Effective Time (as defined in the Merger
Agreement) the undersigned will not sell, transfer or otherwise dispose
of, or, as contemplated by Accounting Series Releases 130 and 135, as
amended, of the Commission, reduce his, her or its risk relative to any
shares of Company Common Stock held by the undersigned and the undersigned
will not sell, transfer or otherwise dispose of, or as contemplated by
Accounting Series Releases 130 and 135, as amended, reduce his, her or its
risk relative to any shares of Parent Company Stock received by the
undersigned in the Merger or other shares of Parent Common Stock until
after such time as results covering at least 30 days of combined
operations of Parent and the Company have been published by Parent, in the
form of a quarterly earnings report, an effective registration statement
filed with the Commission, a report to the Commission on Form 10-K, 10-Q,
or 8-K, or any other public filing or announcement which includes the
results of at least 30 days of combined operations.
G. Neither the execution of this letter nor any provisions set forth
herein shall be construed as an admission on the part of the undersigned
that the undersigned is an affiliate of the Company as described in the
first paragraph of this letter, or as a waiver of any rights the
undersigned may have to object to any claim that the undersigned is such
an affiliate on or after the date of this letter.
2. By Parent's and the Company's acceptance of this letter, each of the
Company and Parent hereby severally agrees with the undersigned to the extent
applicable as follows:
A. For so long as and to the extent necessary to permit the
undersigned
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to sell Parent Common Stock pursuant to Rule 145 and, to the extent
applicable, Rule 144 under the Act, Parent shall (a) use its reasonable
efforts to (i) file, on a timely basis, all reports and data required to
be filed with the Commission by it pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii)
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furnish to the undersigned upon request a written statement as to whether
Parent has complied with such reporting requirements during the 12 months
preceding any proposed sale of Parent Common Stock by the undersigned
under Rule 145, and (b) otherwise use its reasonable efforts to permit
such sales pursuant to Rule 145 and Rule 144. Parent and the Company have
filed all reports required to be filed with the Commission under Section
13 of the Exchange Act during the preceding 12 months.
B. It is understood and agreed that certificates with the legend set
forth in paragraphs D and E above will be substituted by delivery of
certificates without such legend if (i) one year shall have elapsed from
the date the undersigned acquired Parent Common Stock, received in the
Merger and the provisions of Rule 145(d)(2) are then available to the
undersigned, (ii) two years shall have elapsed from the date the
undersigned acquired Parent Common Stock received in the Merger and the
provisions of Rule 145(d)(3) are then applicable to the undersigned, or
(iii) Parent has received either an opinion of counsel, which opinion and
counsel shall be reasonably satisfactory to it, or a "no-action" or
interpretive letter obtained by the undersigned from the staff of the
Commission, to the effect that the restrictions imposed by Rule 144 and
Rule 145 under the Securities Act no longer apply to the undersigned.
Very truly yours,
__________________________
Signature
__________________________
Print Name
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ACCEPTED:
Dated:
XXXXXX XXXXXXXXXXX
By:_____________________________
Name:___________________________
Title:__________________________
Dated:
PULSEPOINT COMMUNICATIONS
By:_____________________________
Name:___________________________
Title:__________________________
Dated:
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