EXHIBIT 99.3 TO FORM 8-K
EXHIBIT E-2 TO THE AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
NETMIND AFFILIATE POOLING AGREEMENT dated as of December __, 1999,
between PUMA TECHNOLOGY, INC., a Delaware corporation ("Puma"), and the
undersigned shareholder (the "Shareholder") of NETMIND TECHNOLOGIES, INC., a
California corporation ("NetMind"), who is a signatory hereto.
Simultaneously with the execution and delivery of this Agreement,
Puma, NetMind, and Rocket Kitty Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Puma ("Merger Sub"), have entered into a Agreement
and Plan of Merger and Reorganization (the "Reorganization Agreement"), pursuant
to which Merger Sub is merging with and into NetMind (the "Merger") and the
NetMind Shareholders are receiving shares of common stock of Puma. The
transactions contemplated by the Reorganization Agreement are intended to be
accounted for as a pooling of interests pursuant to Opinion No. 16 of the
Accounting Principals Board. All capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Reorganization Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from the Merger and of the mutual covenants contained in this Agreement, the
parties agree as follows:
1. TRANSFER RESTRICTIONS.
(a) The Shareholder may be deemed to be an "affiliate" of NetMind
within the meaning of Rule 145 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), and Accounting Series Release No. 130, as
amended ("Release No. 130"), Accounting Series Release No. 135 and Staff
Accounting Bulletin No. 76 of the Securities and Exchange Commission (the
"Commission"), although nothing contained herein should be construed as an
admission thereof nor as a waiver of any right Shareholder may have to object to
any claim that Shareholder is such an affiliate on or after the date hereof.
(b) The Shareholder will not sell, exchange, transfer, pledge, ,
distribute, make any gift or otherwise dispose of or grant any option, establish
any "short" or put-equivalent position with respect to or enter into any similar
transaction (through derivatives or otherwise), dispose of or otherwise reduce
his risk, relative to any shares of or options to purchase shares of common
stock, $.001 par value, of Puma (including any shares of NetMind Common Stock or
Preferred Stock or options or warrants to purchase NetMind Common Stock or
Preferred Stock) (the "Puma Shares") beneficially owned by the Shareholder
during the 30-day period prior to the Closing (as defined in the Reorganization
Agreement).
(c) The Shareholder shall not sell, exchange, transfer, pledge,
distribute, make any gift or otherwise dispose of or grant any option, establish
any "short" or put-equivalent position with respect to or enter into any similar
transaction (through derivatives or otherwise) or otherwise reduce his risk
relative to any Puma Shares until such time after the Closing as
financial results covering at least 30 days of the combined operations of
NetMind and Puma after the Closing have been published, within the meaning of
Release No. 130, by Puma in an effective registration statement, Annual
Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form
8-K filed with the Securities and Exchange Commission, or any publicly
disclosed quarterly earnings report or press release or other authorized
public disclosure by Puma that includes the combined results of operations of
Puma and NetMind. Puma, at its discretion, may cause stop transfer orders to
be placed with its transfer agent with respect to certificates for the Puma
Shares. Notwithstanding the foregoing, Shareholder will not be prohibited by
the foregoing from selling or disposing of shares so long as such sale or
disposition is in accordance with the "de minimis" test set forth in SEC
Staff Accounting Bulletin No. 76.
(d) During the period described in Section 1(b) above, subject to
providing written notice to Puma and the other restrictions set forth below, and
to the extent permitted under the "pooling of interests" accounting rules and
applicable securities laws, Shareholder will be permitted to sell up to 10% of
Puma Shares held by Shareholder or to make charitable contributions or bona fide
gifts of the Puma Shares received by Shareholder, subject to the same
restrictions. Such sales or other transfer shall subject to an aggregate
limitation on sales and other transfers for all affiliates of NetMind and Puma
of not more than 1% of the number of shares of outstanding Common Stock of Puma.
Prior to making any such sale, charitable contributions or gifts, Shareholder
will obtain Puma's prior written approval. Shareholder shall give Puma not less
than five (5) business days notice prior to making any sales, charitable
contributions or gifts as contemplated under this Section 1(c), Shareholder will
provide any information reasonably requested by Puma or Puma's accounting firm
regarding such sale, charitable contribution or give, and Shareholder will
refrain from making such sales, charitable contributions or gifts if Shareholder
does not obtain Puma's prior written approval. Puma may withhold such approval
if Puma determines, after consultation with its accounting firm, that such
transaction could preclude the Merger from being accounted for as a "pooling of
interests." The 10% of Puma Shares shall be calculated in accordance with SEC
Accounting Series Release No. 135 as amended by Staff Accounting Bulletin No.
76.
(e) Notwithstanding anything to the contrary contained in this
Agreement, the Shareholder may transfer Puma Shares to a trust established for
the benefit of the Shareholder and/or for the benefit of one or more members of
the Shareholder's family, or make a bona fide gift of Puma Shares to one or more
members of the Shareholder's family, provided that in the case of a transfer or
gift pursuant to this Section 1, a transferee of such shares agrees to be bound
by the limitations set forth in this Agreement.
2. BENEFICIAL OWNERSHIP OF STOCK. Except as set forth on the last page of
this Agreement, Shareholder does not beneficially own or hold voting power over:
(i) any shares of Puma common stock or any other equity securities of Puma or
any options, warrants or other rights to acquire any equity securities of Puma;
or (ii) any capital shares of NetMind or any options, warrants or other rights
to acquire any equity securities ofNetMind.
3. NOTICES. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered,
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given and received when delivered (by hand, by registered mail, by courier or
express delivery service or by facsimile) to the address or facsimile
telephone number set forth beneath the name of such party below (or to such
other address or facsimile telephone number as such party shall have
specified in a written notice given to the other parties hereto):
(a) if to Puma :
Puma Technology, Inc.
0000 Xxxxx Xxxxx Xxxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
General Counsel Associates LLP
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Shareholder, to the address set forth below the
Shareholder's signature on the last page of this Agreement.
4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
5. ENTIRE AGREEMENT. This Agreement, the Reorganization Agreement,
the Exhibits thereto and any other document delivered in connection therewith
contain the entire understanding of the parties hereto in respect of the subject
matter hereof, and supersede all prior negotiations and understandings, oral or
written, between the parties with respect to the subject matter hereof.
6. ATTORNEY'S FEES. In the event of any legal action or proceeding
to enforce or interpret the provisions of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, whether or not the proceeding
results in a final judgment.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable by,
and shall inure to the benefit of and be binding upon, the parties and their
respective successors and assigns. As used herein, the term "successors and
assigns" shall mean, where the context so
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permits, heirs, executors, administrators, trustees and successor trustees
and personal and other representatives.
8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
made and to be performed therein.
9. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
10. THIRD PARTY RELIANCE. Counsel to and accountants for the parties
shall be entitled to rely upon this Agreement.
11. REMEDIES. The Shareholder acknowledges and agrees that Puma's
remedy at law for a breach or threatened breach of any of the provisions of
Section 1 would be inadequate. In recognition of this fact, in the event of a
breach by the Shareholder of any of the provisions of Section 1, as determined
by Puma in its sole discretion acting in good faith, the Shareholder agrees
that, in addition to Puma's remedy at law, Puma, without posting any bond, shall
be entitled to obtain, and the Shareholder agrees not to oppose Puma's request
for, equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available. Nothing herein contained shall be construed as prohibiting
Puma from pursuing any other remedies available to it for such breach or
threatened breach. In addition, Shareholder agrees that upon any violation of
this Agreement, that Shareholder will disgorge to Puma any profits realized by
Shareholder from such transaction which violated this Agreement.
12. EFFECTIVENESS OF AGREEMENT. This Agreement shall become
effective at the Closing. In the event that the Reorganization Agreement shall
be terminated in accordance with Section 9.1 of the Reorganization Agreement,
this Agreement shall simultaneously therewith cease and terminate and be of no
further force or effect and no party hereunder shall have any rights or
obligations of any nature whatsoever hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this NetMind
Affiliate Pooling Agreement to be executed and delivered as of the date first
above written.
PUMA TECHNOLOGY, INC.
By:
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Name:
Title:
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SIGNATURE PAGE TO THE
NETMIND AFFILIATE POOLING AGREEMENT BETWEEN
PUMA TECHNOLOGY, INC.
AND THE SHAREHOLDER
SHAREHOLDER
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(Signature)
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(Print Name)
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(Print Title)*
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(Print Name of Company)*
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(Print Address)
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(Print Fax Number)
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* Leave blank if individual.
Number of shares of Puma common stock beneficially owned by Shareholder:
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Number of shares of Puma common stock subject to options beneficially owned
by Shareholder:
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Number of shares of NetMind common stock and/or preferred stock beneficially
owned by Shareholder:
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Number of shares of NetMind common stock subject to options beneficially owned
by Shareholder:
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