STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of June 14, 1999 (this
"Agreement"), by and between PulsePoint Communications, a California corporation
(the "Company"), and Xxxxxx Xxxxxxxxxxx, a Delaware corporation ("Parent").
RECITALS
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A. The Company and Parent have entered into an Agreement and Plan of
Merger, dated as of the date hereof (as may be amended from time to time, the
"Merger Agreement"), providing for, among other things, a business combination
between Parent and the Company.
B. As a condition and inducement to Parent's willingness to enter
into the Merger Agreement, Parent has requested that the Company agree, and the
Company has agreed, to grant Parent the option contemplated hereby.
C. Capitalized terms not defined herein shall have the meanings set
forth in the Merger Agreement.
D. This Agreement and the Merger Agreement are being entered into
simultaneously.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
Company and Parent agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
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herein, the Company hereby grants to Parent an irrevocable option (the "Option")
to purchase up to 1,385,688 (as adjusted as set forth herein) fully paid and
non-assessible shares (the "Option Shares") of the Company's Common Stock, no
par value ("Company Stock"), at a purchase price of $6.60 (as adjusted as set
forth herein) per Option Share (the "Purchase Price").
2. Exercise of Option. (a) Parent may exercise the Option, in whole
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or in part, at any time or from time to time after but only after the occurrence
of any event as a result of which Parent is entitled to receive the Termination
Fee pursuant to Section 8.2 of the Merger Agreement and the Merger Agreement is
being or has been terminated (an "Exercise Event"); provided, however, that
except as provided in the last sentence of this Section 2(a), the Option shall
terminate and be of no further force and effect upon the earliest to occur of
(A) the Effective Time and (B) nine months after the first occurrence of an
Exercise Event. Notwithstanding the termination of the Option, Parent shall be
entitled to purchase the Option Shares if it has exercised the Option in
accordance with the terms hereof prior to the termination of the Option and the
termination of the Option shall not affect any rights hereunder which by their
terms do not terminate or expire prior to or as of such termination.
(b) Notice of Exercise. In the event that Parent wishes to
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exercise the Option, it shall send to the Company a written notice (the date of
each such notice being herein
referred to as a "Notice Date") to that effect, which notice also specifies a
date not earlier than three business days nor later than 30 business days from
the Notice Date for the closing of such purchase (an "Option Closing Date");
provided, however, that (i) if the closing of a purchase and sale pursuant to
the Option (an "Option Closing") cannot be consummated by reason of any
applicable judgment, decree, order, law or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on
which such restriction on consummation has expired or been terminated and (ii)
without limiting the foregoing, if prior notification to or approval of any
regulatory authority is required in connection with such purchase, Parent and
the Company shall promptly file the required notice or application for approval
and shall cooperate in the expeditious filing of such notice or application, and
the period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval
has been obtained, and in either event, any requisite waiting period has expired
or been terminated. Each of Parent and the Company agrees to use commercially
reasonable efforts to cooperate with and provide information to the other, for
the purpose of any required notice or application for approval. Any exercise of
the Option shall be deemed to occur on the Notice Date relating thereto. The
place of any Option Closing shall be at the offices of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, One New York Plaza, New York, New York, and the time of the
Option Closing shall be 10:00 a.m. (Eastern Time) on the applicable Option
Closing Date.
3. Payment and Delivery of Certificates. (a) At any Option Closing,
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Parent shall pay to the Company in immediately available funds by wire transfer
to a bank account designated in writing by the Company an amount equal to the
Purchase Price multiplied by the number of Option Shares for which the Option is
being exercised; provided, that failure or refusal of the Company to designate a
bank account shall not preclude Parent from exercising the Option, in whole or
in part.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), the Company shall
deliver to Parent a certificate or certificates representing the Option Shares
to be purchased at such Option Closing, which Option Shares shall be free and
clear of all liens, claims, charges and encumbrances of any kind whatsoever. If
at the time of issuance of the Option Shares pursuant to the exercise of the
Option hereunder, the Company shall have issued any share purchase rights or
similar securities ("Rights") to holders of Company Stock, then each Option
Share issued pursuant to such exercise shall be accompanied by a corresponding
Right or new rights with terms substantially the same as and at least as
favorable to Parent as those issued to other holders of Company Stock.
(c) Restrictive Legend. Certificates for the Option Shares
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delivered at any Option Closing shall have typed or printed thereon a
restrictive legend which shall read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
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BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE."
It is understood and agreed that the foregoing legend shall be removed by
delivery of substitute certificate(s) without such legend upon the sale of the
Option Shares pursuant to a registered public offering or Rule 144 under the
Securities Act or any other sale as a result of which such legend is no longer
required.
4. Adjustment upon Changes in Capitalization, Etc. (a) In the event
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of any change in Company Stock by reason of a stock dividend, split-up, merger,
recapitalization, combination, exchange of shares or similar transaction, the
type and number of shares or securities subject to the Option, and the Purchase
Price therefor, shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction, so that Parent shall receive
upon exercise of the Option the number and class of shares or other securities
or property that Parent would have received in respect of Company Stock if the
Option had been exercised immediately prior to such event or the record date
therefor, as applicable.
(b) Without limiting the parties' relative rights and
obligations under the Merger Agreement, in the event that the Company enters
into an agreement (i) to consolidate with or merge into any person, other than
Parent or one of its subsidiaries, and the Company shall not be the continuing
or surviving corporation in such consolidation or merger, (ii) to permit any
person, other than Parent or one of its subsidiaries, to merge into or
consolidate with the Company and the Company shall be the continuing or
surviving corporation, but in connection with such merger or consolidation, the
shares of Company Stock outstanding immediately prior to the consummation of
such merger or consolidation shall be changed into or exchanged for stock or
other securities of the Company or any other person or cash or any other
property, or the shares of Company Stock outstanding immediately prior to the
consummation of such merger or consolidation shall, after such merger or
consolidation, represent less than 50% of the outstanding voting securities of
the merged or consolidated company, or (iii) to sell or otherwise transfer all
or substantially all of its assets to any person, other than Parent or one of
its subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of shares or other
securities, cash or property that Parent would have received in respect of
Company Stock if the Option had been exercised immediately prior to such
consolidation, merger, sale or transfer, or the record date therefor, as
applicable.
(c) If, prior to the termination of the Option in accordance
with Section 2, the Company enters into any agreement (x) pursuant to which all
outstanding shares of Company Stock are to be purchased for, or converted into
the right to receive in whole or in part (other than in respect of fractional
shares) cash or (y) with respect to any transaction described in clauses (i),
(ii) and (iii) of paragraph (b) (each of (x) and (y), a "Transaction"), and, in
the case of each of clauses (x) and (y), the Option is then exercisable, the
Company covenants that proper provision
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shall be made in such agreement to provide that, if the Option shall not
theretofore have been exercised, then upon the consummation of the Transaction
(which in the case of a Transaction involving a tender offer shall be when
shares of Company Stock are accepted for payment), Parent shall have the right,
at its election, by not less than two business days' prior written notice to the
Company, to receive in exchange for the cancellation of the Option an amount in
cash equal to the Spread. For purposes of this Agreement, the term "Spread"
means the number of Option Shares multiplied by the excess of (A) the higher of
the closing sales price per share of Company Stock on the principal securities
exchange or quotation system on which the Company Stock is then listed or
traded, as reported by The Wall Street Journal, on the day (i) the average of
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the closing prices of the shares of Company Stock as reported by The Wall Street
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Journal over the ten-trading day period beginning on the trading day immediately
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following the announcement of such agreement or (ii) the average of the closing
prices of the shares of Company Stock as reported by The Wall Street Journal
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over the ten-trading day period ending on the trading day immediately prior to
the consummation of such Transaction, over (B) the Purchase Price.
Notwithstanding the foregoing, the amount of the Spread, when added to any
Termination Fee paid or payable to Parent, shall not exceed $4 million.
(d) Following exercise of the Option by Parent, in the event
that Parent sells, pledges or otherwise disposes of (including, without
limitation, by merger or exchange) any of the Option Shares (a "Sale"), then:
(i) any Termination Fee due and payable by the
Company following such time shall be reduced by an amount, if any, equal to the
excess of (1) the total of (A) the Termination Fee and (B) the excess of (w) the
aggregate amounts received (whether in cash, securities or otherwise) by Parent
in all such Sales, over (x) the aggregate Purchase Price of the Option Shares
sold in such Sales (such excess in this sub-clause (B) being the "Offset
Amounts") over (2) $4 million; and
(ii) if the Company has paid to Parent the
Termination Fee prior to the Sale, then Parent shall immediately remit to the
Company, as additional Purchase Price for the Option Shares, the excess, if any,
of (y) the total of the Termination Fee and the Offset Amounts of all Sales over
(z) $4 million.
(e) Notwithstanding anything to the contrary in this Agreement
or the Merger Agreement, in no event shall the aggregate of any Termination Fee,
all Offset Amounts and the Spread exceed $4 million.
5. Covenants of the Company and Parent. (a) The Company covenants
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(i) to maintain, free from preemptive rights, sufficient authorized but unissued
or treasury shares of Company Stock so that the Option may be fully exercised
without additional authorization of Company Stock after giving effect to all
other options, warrants, convertible securities and other rights of third
parties to purchase shares of Company Stock; (ii) not to seek to avoid the
observance or performance of any of the covenants, agreements or conditions to
be observed or performed hereunder by the Company and not to take any action
which would cause any of its representations or warranties not to be true; and
(iii) not to engage in any action or omit to take
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any action which would have the effect of preventing or disabling the Company
from delivering the Option Shares to Parent upon exercise of the Option or
otherwise performing its obligations under this Agreement.
(b) Parent covenants not to sell, assign, transfer or otherwise
dispose of the Option, any part thereof, or any of its other rights hereunder to
any third party without the prior written consent of the Company which consent
shall not be unreasonably withheld or delayed. Parent may offer or sell Option
Shares only pursuant to a registration under the Securities Act or an exemption
therefrom.
6. Listing. If Company Stock or any other securities to be acquired
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upon exercise of the Option are then listed on the Nasdaq Stock Market (or any
other national securities exchange or national securities quotation system), the
Company, upon the request of Parent, shall promptly file an application to list
the shares of Company Stock or other securities to be acquired upon exercise of
the Option on the Nasdaq Stock Market (and any such other national securities
exchange or national securities quotation system) and shall use reasonable best
efforts to obtain approval of such listing as promptly as practicable.
7. Loss or Mutilation. Upon receipt by the Company of evidence
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reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, the Company shall execute and deliver a new Agreement
of like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not the Agreement so lost, stolen, destroyed, or mutilated shall at
any time be enforceable by anyone.
8. Registration Rights. The Company shall, if requested by Parent at
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any time and from time to time within two years after the date of first exercise
of the Option, as expeditiously as possible prepare and file up to two
registration statements under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any or all
securities that have been acquired by exercise by Parent of the Option, in
accordance with the intended method of sale or other disposition stated by
Parent, including a "shelf" registration statement under Rule 415 under the
Securities Act or any successor provision; and the Company shall use
commercially reasonable efforts to qualify such securities under any applicable
state securities laws. Parent agrees to use reasonable best efforts to cause,
and to cause any underwriters of any sale or other disposition to cause, any
sale or other disposition pursuant to such registration statement to be effected
on a widely distributed basis. The Company shall use reasonable best efforts to
cause each such registration statement to become effective, to obtain all
consents or waivers of other parties which are required therefor, and to keep
such registration statement effective for such period not in excess of 90
calendar days from the day such registration statement first becomes effective
as may be reasonably necessary to effect such sale or other disposition. The
obligations of the Company to file a registration statement and to maintain its
effectiveness may be suspended for one or more periods of time not exceeding 90
calendar days in the aggregate with respect to any registration statement if the
Board of Directors of the Company shall have determined that the filing of such
registration statement or
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the maintenance of its effectiveness would require disclosure of nonpublic
information that would materially and adversely affect the Company or would
interfere with a planned merger, sale of material assets, recapitalization or
other significant corporate action (other than the issuance of equity
securities). Any registration statement prepared and filed under this Section,
and any sale covered thereby, shall be at the Company's expense except for
underwriting discounts or commissions and brokers' fees, which shall be borne
solely by Parent. Parent shall provide in writing all information reasonably
requested by the Company for inclusion in any registration statement to be filed
hereunder. If, during the time periods referred to in the first sentence of this
Section, the Company effects a registration under the Securities Act of the
Company's equity securities for its own account or for any other of its
stockholders (other than on Form S-4 or Form S-8, or any successor form), it
shall allow Parent the right to participate in such registration; provided that,
if the managing underwriters of such offering advise the Company that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering on a commercially
reasonable basis, priority shall be given to the securities intended to be
included therein by the Company for its own account and, thereafter, the Company
shall include the securities requested to be included therein by Parent pro rata
with the securities intended to be included therein by other stockholders of the
Company. In connection with any registration pursuant to this Section, Parent
and the Company shall provide each other and any underwriter of the offering
with customary representations, warranties, covenants, indemnification, and
contribution in connection with such registration.
9. Miscellaneous.
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(a) Fees and Expenses. Except as otherwise provided in the
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Merger Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
incurring such expenses.
(b) Amendment. This Agreement may not be amended except by an
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instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICT OF LAWS RULES OR PRINCIPLES.
(d) Notices. All notices or other communications under this
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Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telegram, telex
or other standard form of telecommunications, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
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If to the Company:
PulsePoint Communications
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
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 X. Xxxxxx
Telecopy No.: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section.
(e) Assignment; Binding Effect; No Third Party Beneficiaries.
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Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be sold, assigned, disposed of or otherwise transferred by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
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(f) Further Assurances. In the event of any exercise of the
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Option by Parent, the Company and Parent shall execute and deliver all such
documents and instruments and take all such further action that may be
reasonably necessary in order to consummate the transactions provided for by
such exercise.
(g) Survival. All the Company's representations, warranties
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and covenants contained herein shall survive each Option Closing.
(h) ENFORCEMENT. THE PARTIES HERETO AGREE THAT IRREPARABLE
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DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT
WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE
BREACHED. IT IS ACCORDINGLY AGREED THAT SUBJECT TO THE NEXT SENTENCE, THE
PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF
THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN
ANY COURT OF THE UNITED STATES OR ANY STATE HAVING JURISDICTION, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
EACH OF THE PARTIES HERETO (I) CONSENTS 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 AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS 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 AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN A FEDERAL COURT SITTING
IN THE STATE OF NEW YORK OR A NEW YORK STATE COURT.
(i) Counterparts. This Agreement may be executed by the
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parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company and Parent have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the day and year first written above.
PULSEPOINT COMMUNICATIONS
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: President and C.E.O.
XXXXXX XXXXXXXXXXX
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Stock Option Agreement]
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