STOCK RESTRICTION AGREEMENT
THIS AGREEMENT is made this 11th day of September, 1998, by and
between NetZero, Inc., a California corporation (the "Company") and ________
("Shareholder"). Capitalized terms used but not otherwise defined in this
Stock Restriction Agreement shall have the meaning given such terms in the
Stock Purchase Agreement (as defined below).
WHEREAS, the Shareholder is the owner of ________ shares of
the Company's Common Stock (the "Shares");
WHEREAS, as an inducement to and in consideration of the
consummation by certain investors of the transactions contemplated by that
certain Preferred Stock Purchase Agreement dated on or about the date hereof
(the "Stock Purchase Agreement"), Shareholder has agreed to subject fifty
percent (50%) of the Shares (the "Unvested Stock") to a repurchase right at
cost in favor of the Company on the terms set forth below.
NOW THEREFORE, IT IS HEREBY AGREED:
1. TRANSFER RESTRICTIONS.
(a) RESTRICTION ON TRANSFER. Shareholder shall not transfer,
assign, encumber or otherwise dispose of any of the Unvested Stock which are
subject to the Company's Repurchase Right under Section 2. Such restrictions
on transfer, however, shall not be applicable to (i) a gratuitous transfer of
Unvested Stock made to the Shareholder's spouse or issue, including adopted
children, or to a trust for the exclusive benefit of the Shareholder or the
Shareholder's spouse or issue, or (ii) a transfer of title to the Unvested
Stock effected pursuant to the Shareholder's will or the laws of intestate
succession.
(b) TRANSFEREE OBLIGATIONS. Each person to whom shares of
the Unvested Stock are transferred by means of one of the permitted transfers
specified in Section 1(a) must, as a condition precedent to the validity of
such transfer, acknowledge in writing to the Company that such person is
bound by the provisions of this Agreement and that the transferred shares are
subject to the Company's Repurchase Right granted hereunder, to the same
extent such shares would be so subject if retained by the Shareholder.
(c) DEFINITION OF OWNER. For purposes of Section 2 of this
Agreement, the term "Owner" shall include the Shareholder and all subsequent
holders of the Unvested Stock who derive their chain of ownership through a
permitted transfer from the Shareholder in accordance with Section 1(a).
2. REPURCHASE RIGHT.
(a) GRANT. The Company is hereby granted the right (the
"Repurchase Right"), exercisable at any time during the sixty (60) day period
following the date the Shareholder ceases for any reason to be a Service
Provider (as defined herein) to the Company, to repurchase, at a price per
share of $.0002 per share (the "Repurchase Price"), up to all or a
portion of the Unvested Stock as set forth in Section 2(c). For purposes of
this Agreement, the Shareholder shall be deemed to be a "Service Provider" to
the Company so long as he renders services to the Company or one or more of
its parent or subsidiary corporations, whether as an employee or an
independent non-employee consultant.
(b) EXERCISE OF THE REPURCHASE RIGHT. The Repurchase Right
shall be exercisable by written notice delivered to the Owner of the shares
to be repurchased prior to the expiration of the applicable sixty (60) day
period specified in Section 2(a). The notice shall indicate the number of
shares of Unvested Stock to be repurchased and the date on which the
repurchase is to be effected, such date to be not more than thirty (30) days
after the date of notice. If the shares to be repurchased are held in escrow,
the Company may effect the repurchase by delivering to the Owner cash or cash
equivalents in an amount equal to the Repurchase Price multiplied by the
number of shares of Unvested Stock which are to be repurchased either (i)
concurrently with the notice referenced above or (ii) on the date specified
in the notice, and, upon delivery of such payment, the repurchase of such
Unvested Stock shall be deemed completed. If the Owner is in possession of
the certificate evidencing the shares to be repurchased, the Owner shall,
prior to the close of business on the date specified for the repurchase,
deliver to the Secretary of the Company the certificates representing the
Unvested Stock to be repurchased, each certificate to be properly endorsed
for transfer. The Company shall, promptly following receipt of such stock
certificates, pay to the Owner an amount equal to the Repurchase Price to be
paid for the shares which are to be repurchased.
(c) TERMINATION OF THE REPURCHASE RIGHT. The Repurchase
Right shall apply to all shares of the Unvested Stock and shall lapse with
respect to, and Shareholder shall accordingly acquire a vested interest in,
the Unvested Stock in a series of forty-eight (48) successive monthly
installments upon Shareholder's completion of each additional month as a
Service Provider to the Company over the forty-eight (48) month period
measured from September 11, 1998.
(d) ADDITIONAL SHARES OR SUBSTITUTED SECURITIES. In the
event of any stock dividend, stock split, recapitalization or other change
affecting the company's outstanding Common Stock as a class without receipt
of consideration, then any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend), which
is by reason of any such transaction distributed to the Shareholder with
respect to the Unvested Stock, shall be immediately subject to the Repurchase
Right. Appropriate adjustments to reflect the distribution of such securities
or property shall be made to the number of shares of Unvested Stock for all
purposes relating to the Repurchase Right, and the Company (or its
successors) may require the establishment of an escrow account for any
property or money (other than regular cash dividends) distributed with
respect to the shares covered by the Repurchase Right in order to facilitate
the exercise of such right. Appropriate adjustments shall also be made to the
price per share to be paid upon the exercise of the Repurchase Right in order
to reflect the effect of any such transaction upon the Company's capital
structure; provided, however, that the aggregate purchase price shall remain
the same.
3. LEGENDS. All certificates representing shares of stock of
the Company subject to the provisions of this Agreement shall have endorsed
thereon the following legend:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS AND CONDITIONS OF A CERTAIN STOCK RESTRICTION AGREEMENT
WHICH INCLUDES A REPURCHASE RIGHT. COPIES OF THE AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF NETZERO, INC."
4. ESCROW OF SHARES.
(a) ESCROW HOLDER. The Unvested Stock shall be held in
escrow by the Secretary of the Company, as escrow holder ("Escrow Holder"),
along with an Assignment Separate from Certificate executed by Shareholder in
blank in the form attached hereto as Schedule B, until expiration of the
Company's Repurchase Right.
(b) INSTRUCTIONS TO ESCROW HOLDER. The Escrow Holder is
hereby directed to permit the transfer or repurchase of the Unvested Stock
only in accordance with this Agreement or instructions signed by the
Shareholder and an officer of the Company other than the Shareholder. If the
Company's Repurchase Right is exercised, the Escrow Holder is hereby
authorized to take all necessary and appropriate action, including, without
limitation, the completion and delivery to the Company of Schedule A hereto,
to effect the purposes of this Agreement. In the event that further
instructions are desired by the Escrow Holder, he or she shall be entitled to
rely upon directions executed by an officer of the Company other than the
Shareholder. The Escrow Holder shall have no liability for any act or
omission hereunder while acting in good faith in the exercise of his or her
own judgment. Upon lapse of the Repurchase right, the Escrow Agent shall
deliver to the Shareholder all documents, securities or other property
belonging to Shareholder, and shall be discharged of all further obligations
hereunder.
(c) RIGHTS OF SHAREHOLDER. Subject to the terms hereof, the
Shareholder shall have all the rights of a shareholder with respect to
Unvested Stock while such shares are held in escrow, including without
limitation the right to vote the Unvested Stock and receive any cash
dividends declared thereon.
5. MISCELLANEOUS.
(a) EFFECTIVENESS. This Stock Restriction Agreement shall be
effective only upon the closing of the transactions contemplated by the Stock
Purchase Agreement.
(b) FURTHER INSTRUMENTS AND ACTIONS. The parties agree to
execute such further instruments and to take such further action as may
reasonably be necessary to carry out the intent of this Agreement.
(c) NOTICES. Any notice required or permitted hereunder
shall be given in writing and shall be deemed effectively given upon personal
delivery or upon deposit in the United States Post Office, by registered or
certified mail with postage and fees prepaid, addressed to the other party
hereto at his or her address hereinafter shown below his or her signature or
at such other address as such party may designate by ten (10) days' advance
written notice to the other party hereto.
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(d) GOVERNING LAW. The Agreement is governed by the internal
law of California and shall inure to the benefit of the successors and
assigns of the Company and, subject to the restriction on transfer herein set
forth, be binding upon the Shareholder, his or her heirs, executors,
administrators, guardians, successors and assigns.
(e) AMENDMENTS AND WAIVERS. This Agreement represents the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all previous understandings, written or oral. This Agreement
may only be amended with the written consent of the parties hereto, and no
oral waiver or amendment shall be effective under any circumstances
whatsoever.
(f) NO WAIVER. The failure of the Company in any instance to
exercise the Repurchase Rights granted hereunder shall not constitute a
waiver of any other repurchase rights that may subsequently arise under the
provisions of this agreement or any other agreement between the Company and
Shareholder. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition, whether
of like or different nature.
(g) ASSIGNMENT. The Company's Repurchase Right may only be
assigned if the company is legally or contractually prohibited from
exercising the Repurchase Right. In the event the Company does assign the
Repurchase Right, the Company shall use its best efforts to ensure that the
benefits of the Repurchase Right inure generally to the Company or are shared
ratably by all of the Company's shareholders. This provision is intended for
the benefit of the Company's shareholders generally and not for Shareholder
individually, and may be amended or waived without Shareholder's consent.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NETZERO, INC.
By:
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Name:
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Its:
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Address:
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SHAREHOLDER
By:
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Name:
Address:
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SCHEDULE A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, I ________________, hereby sell, assign and
transfer unto __________________ (______________) shares of the Common Stock
of NETZERO, INC., standing in my name on the books of said corporation
represented by Certificate No. ___ herewith and do hereby irrevocably
constitute and appoints ______________________ to transfer said stock on the
books of the within-named corporation with full power of substitution in the
premises.
Signature:
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This Assignment Separate from Certificate was executed in
conjunction with the terms of a Stock Restriction Agreement between the above
assignor and NETZERO, INC., dated September __, 1998 and shall not be used in
any manner except as provided in such Agreement.
