March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ Xxxxxx Xxxxxx
-----------------------
XXXXXX XXXXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman & Chief
Operating Officer
3
C:\DATA\WP\74807\0003\1819\LTR3207P.540
March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ J. Xxxxxx Xxxxx
-----------------------
J. XXXXXX XXXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman &
Chief Operating Officer
3
C:\DATA\WP\74807\0003\1819\LTR3207P.560
March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ Xxxxxx Xxxx
-----------------------
XXXXXX XXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman & Chief
Operating Officer
3
C:\DATA\WP\74807\0003\1819\LTR3207P.570
March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ Xxxxxx Xxxxxx
-----------------------
XXXXXX XXXXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman &
Chief Operating Officer
3
C:\DATA\WP\74807\0003\1819\LTR3207P.580
March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ Xxx Xxxxxx
-----------------------
XXX XXXXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman & Chief
Operating Officer
3
C:\DATA\WP\74807\0003\1819\LTR3207R.010
March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ Xxxxxx Xxxxxx
-----------------------
XXXXXX XXXXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman &
Chief Operating Officer
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March 18, 1997
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the provisions of the Agreement and Plan
of Merger, dated as of March 18, 1997 (together with any amendments thereto, the
"Merger Agreement"), among American List Corporation, a Delaware corporation
(the "Company"), Xxxxxx Communications, Inc., a Delaware corporation ("Parent"),
and Xxxxxx Z Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged
with and into the Company, with the Company continuing as the surviving
corporation (the "Merger"). This letter constitutes the undertakings of the
undersigned contemplated by the Merger Agreement.
I understand that I may be deemed to be an "affiliate" of the
Company, as such term is defined for purposes of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and that the transferability of the shares of common stock, par value $.001 per
share, of Parent (the "Parent Shares") which I will receive upon the
consummation of the Merger in exchange for my shares of common stock of the
Company (the "Company Shares"), or upon exercise of certain options I hold to
purchase shares of common stock of the Company is restricted. Nothing herein
shall be construed as an admission that I am an affiliate or as a waiver of any
rights that I may have to object to any claim that I am such an affiliate on or
after the date of this letter.
I hereby represent, warrant and covenant to Parent that:
(a) I will not transfer, sell or otherwise dispose of any of
the Parent Shares except (i) pursuant to an effective registration statement
under the Securities Act, or (ii) as permitted by, and in accordance with, Rule
145, if applicable, or another applicable exemption under the Securities Act;
and
1
(b) I will not (i) transfer, sell or otherwise dispose of any
Company Shares or (ii) sell or otherwise reduce my risk (within the meaning of
the Securities and Exchange Commission's Financial Reporting Release No. 1.,
"Codification of Financial Reporting Policies," Section 201.01 [47 F.R. 21028]
(May 17, 1982) with respect to any Parent Shares, in each case until after such
time (the "Delivery Time") as consolidated financial statements which reflect at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, except as permitted by Staff Accounting Bulletin No.
76 issued by the Securities and Exchange Commission; and
(c) I shall execute and deliver to Xxxxxxx, Xxxx & Xxxxx LLP,
counsel to the Company, and to the Company a certificate in such form as and at
such time or times as may be reasonably requested by such law firm or the
Company, as the case may be, in connection with such law firm's delivery of an
opinion with respect to the transactions contemplated by the Merger Agreement
and shall provide a copy thereof to Parent.
I hereby acknowledge that, except as otherwise provided in the
Merger Agreement, Parent is under no obligation to register the sale, transfer,
pledge or other disposition of the Parent Shares or to take any other action
necessary for the purpose of making an exemption from registration available.
I understand that Parent may issue stop transfer instructions
to its transfer agents with respect to the Parent Shares and that a restrictive
legend will be placed on the certificates delivered to me evidencing the Parent
Shares in substantially the following form:
"This certificate and the shares represented hereby have been
issued pursuant to a transaction governed by Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold or otherwise disposed of unless registered under the Securities Act
pursuant to a Registration Statement in effect at the time or unless the
proposed sale or disposition can be made in compliance with Rule 145 or without
registration in reliance on another exemption therefrom. Reference is made to
that certain letter agreement, dated March 18, 1997, between the Holder and the
Issuer, a copy of which is on file in the principal office of the Issuer which
contains further restrictions on the transferability of this certificate and the
shares represented hereby."
This letter agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
2
Without the consent of J. Xxxxxx Xxxxx, Parent shall not
register any shares of its common stock currently held or beneficially owned by
Xxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx or Xxxxxxxx Xxxxxx in connection with
any registered secondary offering prior to the publication of at least 30 days
of financial results of Parent and its consolidated subsidiaries for the period
following the Merger, provided that the restrictions in this paragraph shall
terminate upon the earlier of (i) the termination of the Merger Agreement for
any reason or (ii) August 15, 1997 unless the Merger shall have been consummated
as of such date.
The term Parent Shares as used in this letter shall mean and
include not only the common stock of Parent as presently constituted, but also
any other stock which may be issued in exchange for, in lieu of, or in addition
to, all or any part of such Parent Shares.
Very truly yours,
/s/ Xxxxxxx Xxxxxx
-----------------------
XXXXXXX XXXXXX
Acknowledged and agreed to:
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman &
Chief Operating Officer
3
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