DIRECTLY OR INDIRECTLY, (I) SOLICIT,
INITIATE OR KNOWINGLY ENCOURAGE OR FACILITATE (INCLUDING BY WAY OF FURNISHING
NONPUBLIC INFORMATION) ANY INQUIRIES OR THE MAKING OF ANY PROPOSAL THAT
CONSTITUTES, OR WOULD REASONABLY BE EXPECTED TO LEAD TO, ANY ACQUISITION
PROPOSAL OR FRUSTRATING TRANSACTION, (II) ENTER INTO ANY AGREEMENT WITH RESPECT
TO ANY ACQUISITION PROPOSAL OR FRUSTRATING TRANSACTION OR (III) ENTER INTO,
CONTINUE OR OTHERWISE PARTICIPATE IN ANY DISCUSSIONS OR NEGOTIATIONS REGARDING
ANY ACQUISITION PROPOSAL OR FRUSTRATING TRANSACTION.
(F)
SUCH STOCKHOLDER SHALL NOT, NOR SHALL SUCH STOCKHOLDER PERMIT ANY
OF ITS SUBSIDIARIES TO, AND SUCH STOCKHOLDER SHALL USE ALL COMMERCIALLY
REASONABLE EFFORTS TO CAUSE ITS AND ITS SUBSIDIARIES' REPRESENTATIVES,
DIRECTORS, OFFICERS AND EMPLOYEES NOT TO, DIRECTLY OR INDIRECTLY, ISSUE ANY
PRESS RELEASE OR MAKE ANY OTHER PUBLIC STATEMENT WITH RESPECT TO THE MERGER
AGREEMENT, THIS AGREEMENT, THE MERGER OR ANY OTHER TRANSACTIONS WITHOUT THE
PRIOR WRITTEN CONSENT OF PARENT, EXCEPT AS MAY BE REQUIRED BY APPLICABLE LAW.
(G)
SUCH STOCKHOLDER HEREBY WAIVES ANY APPRAISAL RIGHTS WITH RESPECT
TO ANY AND ALL SHARES OF SONGBIRD COMMON STOCK OWNED (OF RECORD OR BENEFICIALLY)
BY SUCH STOCKHOLDER IN CONNECTION WITH THE MERGER THAT SUCH STOCKHOLDER MAY
HAVE.
(H)
NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED AS OBLIGATING ANY
STOCKHOLDER TO EXERCISE ANY SHARE ACQUISITION RIGHTS.
SECTION 4.
GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(A) EACH
STOCKHOLDER HEREBY SEVERALLY IRREVOCABLY GRANTS TO, AND APPOINTS, WILLIAM A.
FLETCHER, GEORGE BARRETT OR RICHARD EGOSI, IN THEIR RESPECTIVE CAPACITIES AS
DESIGNEES OF PARENT, AND EACH OF THEM INDIVIDUALLY, OR ANY OF THEM, SUCH
STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION), FOR
AND IN THE NAME, PLACE AND STEAD OF SUCH STOCKHOLDER, TO VOTE ALL OF SUCH
STOCKHOLDER'S SUBJECT SHARES (OWNED OF RECORD) IN ACCORDANCE WITH SECTION 3 OF
THIS AGREEMENT.
(B)
EACH STOCKHOLDER REPRESENTS THAT ANY PROXIES HERETOFORE GIVEN IN
RESPECT OF SUCH STOCKHOLDER'S SUBJECT SHARES ARE NOT IRREVOCABLE AND THAT ALL
SUCH PROXIES ARE HEREBY REVOKED.
(C)
EACH STOCKHOLDER UNDERSTANDS AND ACKNOWLEDGES THAT PARENT IS
ENTERING INTO THE MERGER AGREEMENT IN RELIANCE UPON SUCH STOCKHOLDER'S EXECUTION
AND DELIVERY OF THIS AGREEMENT.
SUCH STOCKHOLDER HEREBY AFFIRMS THAT THE
IRREVOCABLE PROXY SET FORTH IN THIS SECTION 4 IS GIVEN IN CONNECTION WITH THE
EXECUTION OF THE MERGER AGREEMENT AND THAT SUCH IRREVOCABLE PROXY IS GIVEN TO
SECURE THE PERFORMANCE OF THE DUTIES OF SUCH STOCKHOLDER UNDER THIS AGREEMENT.
SUCH STOCKHOLDER HEREBY FURTHER AFFIRMS THAT THE IRREVOCABLE PROXY IS COUPLED
WITH AN INTEREST
5
AND MAY UNDER NO CIRCUMSTANCES BE REVOKED.
SUCH STOCKHOLDER HEREBY RATIFIES AND
CONFIRMS ALL THAT SUCH IRREVOCABLE PROXY MAY LAWFULLY DO OR CAUSE TO BE DONE BY
VIRTUE HEREOF.
THE IRREVOCABLE PROXY IS EXECUTED AND INTENDED TO BE IRREVOCABLE
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212(E) OF THE DGCL.
SECTION 5.
FURTHER ASSURANCES.
EACH STOCKHOLDER SHALL FROM TIME TO
TIME EXECUTE AND DELIVER, OR CAUSE TO BE EXECUTED AND DELIVERED, SUCH ADDITIONAL
OR FURTHER CONSENTS, DOCUMENTS AND OTHER INSTRUMENTS AS REQUESTED BY PARENT THAT
ARE NECESSARY TO CARRY OUT THE PURPOSE AND