EXHIBIT A
NETOBJECTS, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of ____________, 19__,
between NetObjects, Inc., a Delaware corporation (the "Company") and
_____________________ ("Purchaser").
R E C I T A L S:
A. Pursuant to the exercise of a stock option (the "Option") granted
to Purchaser by the Company pursuant to the terms and conditions of that certain
Stock Option Agreement dated ____________, 199_ (the "Option Agreement"),
Purchaser has elected to purchase ________ shares of the Company's Common Stock
(the "Shares"). Pursuant to the terms of the Option Agreement, _________ Shares
are being purchased pursuant to options which have vested and have become
exercisable (the "Vested Shares") and __________ Shares being purchased pursuant
to options which have not vested and are not exercisable (the "Unvested
Shares").
B. Purchaser is a key employee of the Company. The securities
described in this Agreement are being offered and sold pursuant to a written
compensatory benefit plan of the Company or pursuant to a written contract
relating to the compensation of the Purchaser within the meaning of Rule 701
promulgated by the U.S. Securities and Exchange Commission.
NOW, THEREFORE, in consideration of the mutual covenants exchanged,
the parties agree as follows:
1. PURCHASE AND SALE OF SHARES.
(a) PURCHASE AND SALE OF SHARES. The Company agrees to sell to
Purchaser, and Purchaser agrees to purchase from the Company, ____________
Shares of the Company's Common Stock (the "Shares"), at a purchase price of ___
Cents (___) per share, for a total purchase price of $__________. All of the
Shares shall be subject to this Agreement and the restrictions herein contained.
(b) CLOSING. The purchase and sale of the Shares shall be held
at the principal office of the Company within ten (10) days of the date hereof,
or at such other time and place as shall be mutually agreed between Purchaser
and the Company. At the closing, Purchaser shall deliver to the Company the
total purchase price for the Shares in cash or by bank check, and the Company
will issue, as promptly thereafter as practicable, a certificate representing
the Shares issued in the name of Purchaser.
2. REPURCHASE OPTION.
(a) SHARES SUBJECT TO REPURCHASE. Purchaser hereby grants to
the Company the option (the "Repurchase Option") to repurchase all or part of
the Shares at the price per share paid for them by Purchaser (the "Option
Price"), subject to adjustment pursuant to Section 3, upon the occurrences set
forth in subsection (c), but
A-1
only to the extent such Shares have not been released from the Repurchase Option
as provided in subsection (b). All of the Unvested Shares shall initially be
subject to the Repurchase Option.
(b) RELEASE DATES. The Shares subject to the Repurchase Option
shall be released from the Repurchase Option in accordance with the vesting
schedule set forth in Section 3(a) of the Option Agreement to the extent and as
of the dates provided therein. Shares subject to the Repurchase Option are
referred to herein as "Unvested Shares," and Shares which have been released
from the Repurchase Option are referred to herein as "Vested Shares."
(c) OCCURRENCES PERMITTING EXERCISE. The Company may exercise
the Repurchase Option if during the term of this Agreement either of the
following events (an "Offering Event") takes place: (i) Purchaser shall cease
to be employed by the Company (including a parent or subsidiary of the Company)
on a full-time basis for any reason, or no reason, with or without cause,
including involuntary termination, death or disability; or (ii) any event occurs
which causes the involuntary transfer to creditors or to any other person or
entity of all or any part of the Shares still subject to the Repurchase Option
at the time of such transfer.
(d) EXERCISE OF REPURCHASE OPTION. Upon the occurrence of an
Offering Event, the Company may exercise the Repurchase Option by delivering
personally, or by registered or certified mail, to Purchaser (or the Purchaser's
permitted transferee or legal representative, as the case may be), within ninety
(90) days after the date of the Offering Event, a notice in writing indicating
the Company's election to exercise its Repurchase Option and the number of
Shares to be purchased by the Company or the Company's designee, who shall be
identified in such notice, and setting forth a date for closing not later than
thirty (30) days from the date of giving such notice.
(e) CLOSING FOR REPURCHASE OF SHARES. The closing for the
repurchase of the Shares pursuant to the exercise of the Repurchase Option shall
take place at the Company's principal offices. At the closing, the holder of
the certificate(s) representing the Shares being transferred shall deliver said
certificate or certificates evidencing the Shares to the Company, duly endorsed
for transfer, and the Company (or its designee) shall tender payment of the
purchase price for the Shares being purchased. The purchase price shall be
payable in full in cash, or by check, provided that the Company may elect to
offset against and deduct from any payment of the purchase price any
indebtedness then owed by Purchaser to the Company.
3. ADJUSTMENTS.
If, from time to time during the term of this Agreement:
(i) there is any stock dividend, distribution or dividend of cash or property,
stock split, or other change in the character or amount of any of the
outstanding securities of the Company; or (ii) there is any consolidation,
merger or sale of all, or substantially all, of the assets of the Company; then
in such event, any and all new, substituted or additional securities, cash, or
other property to which Purchaser is entitled by reason of his ownership of the
Shares shall be immediately subject to the Repurchase Option and be included in
the word "Shares" for all purposes with the same force and effect as the Shares
presently subject to the Repurchase Option, the Right of First Refusal and other
A-2
terms of this Agreement. While the total Option Price shall remain the same
after any such event, the Option Price per share shall be appropriately
adjusted.
4. RESTRICTIONS ON TRANSFER; RIGHT OF FIRST REFUSAL.
(a) NO TRANSFER OF SHARES SUBJECT TO REPURCHASE OPTION.
Purchaser shall not sell, transfer, pledge, assign or otherwise dispose of any
of the Unvested Shares which are subject to the Repurchase Option.
(b) RIGHT OF FIRST REFUSAL. Should Purchaser wish to transfer
any of the Vested Shares, or any interest in such Vested Shares, Purchaser shall
first deliver a written notice (the "Transfer Notice") to the Company, which
shall have the option to purchase such shares as provided herein (the "Right of
First Refusal"). As used herein, the term "transfer" means any sale,
assignment, gift, hypothecation, alienation or other disposition (including any
involuntary transfer of the Shares (or part of them) to a creditor) to any
individual, entity, government, government agency, political subdivision or
unincorporated association. The Transfer Notice must specify: (i) that
Purchaser has a bona fide intention to sell or transfer such Vested Shares; (ii)
the name and address of the person or firm to whom the Purchaser intends to
transfer the Vested Shares, or interest therein; (iii) the number of Vested
Shares, or interest therein, Purchaser proposes to transfer; (iv) the price or
amount to be paid for the proposed transfer (including the amount of any debt to
be paid, cancelled or forgiven upon foreclosure of a security interest in the
Vested Shares or upon any other transfer to the Purchaser's creditors); and (v)
all other material terms and conditions of the proposed transfer.
(c) ELECTION TO PURCHASE SHARES. Within thirty (30) days after
receipt of the Transfer Notice, the Company or its designee (as the case may be)
may elect to purchase all, but not less than all, of the Vested Shares to which
the Transfer Notice refers at the per share price specified in the Transfer
Notice. If no price is specified in the Transfer Notice, the purchase price
shall be the fair market value of the Shares, as determined in good faith by the
Board of Directors of the Company. Such Right of First Refusal shall be
exercised by delivery to the Purchaser by the Company or its designee, of a
written election to exercise such Right of First Refusal, specifying the number
of Shares to be purchased by the Company or its designee (as the case may be).
Notwithstanding the foregoing, the Company may elect to offset against and
deduct from any payment of the purchase price any indebtedness then owed by
Purchaser to the Company.
(d) CLOSING FOR PURCHASE OF SHARES. In the event the Company
elects to acquire Shares of the Purchaser as specified in the Transfer Notice,
the Secretary of the Company shall so notify the Purchaser and settlement
thereof shall be made in cash within forty-five (45) days after the Secretary of
the Company receives the Transfer Notice, provided that if the terms of payment
set forth in the Transfer Notice were other than cash against delivery, the
Company shall pay for said Shares on the same terms and conditions set forth in
the Transfer Notice.
(e) TRANSFERS FREE OF RIGHT OF FIRST REFUSAL. If the Vested
Shares referred to in the Transfer Notice are not purchased as aforesaid by the
Company, or its designee(s), Purchaser, within a period of ninety (90) days from
the date of delivery of the Transfer Notice to the Company, may sell any of said
Vested
A-3
Shares to any person named in the Transfer Notice at the price and on the terms
specified in the Transfer Notice, or at a higher price or on terms more
favorable to the Purchaser, provided that such sale or transfer is consummated
within ninety (90) days following the date of delivery of the Transfer Notice to
the Company and, provided further, that such sale is in accordance with all the
terms and conditions hereof. The transferee will hold all Shares transferred
hereunder subject to the provisions of this Agreement. No transfer of the
Vested Shares shall be made after the end of such ninety (90)-day period, nor
shall any change in the terms of the transfer be permitted, without delivery by
the Purchaser to the Company of a new Transfer Notice in compliance with the
requirements of this Section 4.
(f) GIFTS OF SHARES. Notwithstanding any other term of this
Section 4, Purchaser may make a gift of all or any part of the Shares to any of
Purchaser's parents, spouse, or issue, or to a trust for the exclusive benefit
of any of the foregoing parties. The donee or donees shall hold such Shares
subject to all the provisions of this Agreement.
5. ASSIGNMENT OF RIGHTS. The Company may assign its rights under
Sections 2, 3, and 4 hereof to one or more persons or entities, who shall have
the right to so exercise such rights in his or its own name and for his or its
own account. If any such transfer of the Shares requires the consent of any
agency pursuant to the securities laws of any state, the time periods specified
herein shall be extended for such period as the necessary request for consent to
transfer is pending before such agency. All parties agree to cooperate in
making such request for transfer, and no transfer shall be executed without such
consent if required by law.
6. TERMINATION OF RESTRICTIONS.
(a) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First
Refusal shall terminate:
(i) on the termination of this Agreement;
(ii) at such time as a public market exists for the
Company's Common Stock. For the purpose of this Agreement, a "public market"
shall be deemed to exist if (i) said Common Stock is listed on a national
securities exchange (as that term is used in the Securities Exchange Act of
1934), or (ii) said Common Stock is listed on the Nasdaq Stock Market or is
traded on the over-the-counter market and prices are published daily on business
days in a recognized financial journal; or
(iii) if more than fifty percent (50%) of the outstanding
shares of the Company's capital stock entitled to vote are sold, redeemed or
exchanged in any (i) merger, consolidation, or reorganization involving the
Company and one or more unaffiliated corporations, (ii) exchange of capital
stock of the Company for stock of any unaffiliated corporation, or (iii) sale of
all or substantially all of the assets of the Company to an unaffiliated
corporation. For purposes of this subsection, an "unaffiliated corporation"
means any corporation that is not controlled by or under common control with,
directly or indirectly, the Company excluding for this purpose control
established merely by common directorships.
A-4
(b) RELEASE OF SHARES FROM REPURCHASE OPTION. The number of
Shares subject to the Repurchase Option will decline as set forth in Section
2(b), and the Repurchase Option shall terminate following the expiration of the
notice specified in Section 2(d). The Company shall within ten (10) days
following Purchaser's written request to the Secretary of the Company, which may
be made once in any twelve (12) month calendar period, release and deliver to
Purchaser a certificate representing that number of Shares which is no longer
subject to the Repurchase Option, or such lesser number of Shares as Purchaser
may have specified in such request. The Company shall cause new certificates to
be issued as necessary to effectuate the release and delivery of such Shares to
Purchaser.
7. LEGENDS.
(a) ENDORSEMENT ON CERTIFICATES. The certificates representing
the Shares subject to this Agreement shall be endorsed with a legend
substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF A RESTRICTED STOCK PURCHASE AGREEMENT
BETWEEN THE COMPANY AND THE REGISTERED HOLDER OR HIS PREDECESSOR IN
INTEREST, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY. THE AGREEMENT MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF
THE COMPANY DURING NORMAL BUSINESS HOURS.
(b) TERMINATION OF ALL RESTRICTIONS. In the event the
restrictions imposed by this Agreement shall be terminated as herein provided, a
new certificate or certificates representing the Shares shall be issued, on
request, without the legend referred to in Subsection 7(a).
(c) SECURITIES LAW LEGENDS. Any transfer or sale of the Shares
is further subject to all restrictions on transfer imposed by state or federal
securities laws. Accordingly, it is understood and agreed that the certificates
representing the Shares shall bear any legends required by such state or federal
securities laws.
8. DISSOLUTION OF MARRIAGE.
(a) PURCHASE OF SHARES FROM FORMER SPOUSE. In the event of the
dissolution of Purchaser's marriage, Purchaser shall have the right and option
to purchase from his or her spouse all of the Shares (i) awarded to the spouse
pursuant to a decree of dissolution of marriage or any other order by any court
of competent jurisdiction and/or by any property settlement agreement (whether
or not incorporated by reference in any such decree), or (ii) gifted to the
spouse by Purchaser prior to the dissolution, at the fair market value of said
Shares as determined by the Company's Board of Directors, upon the terms set
forth below. If either Purchaser or Purchaser's spouse disputes the fair market
valuation of the Shares determined by the Board of Directors, such fair market
value shall be determined by arbitration in accordance with the rules of the
American Arbitration Association. Purchaser shall exercise his or her right, if
at all, within thirty (30) days following the entry of any such decree or
property settlement agreement by delivery to Purchaser's former spouse of
written notice of
A-5
exercise, specifying the number of Shares Purchaser elects to purchase. The
purchase price for the Shares shall be paid by delivery of a promissory note for
the purchase price bearing interest at the rate of ten percent (10%) per annum
payable in four (4) equal annual installments of principal and interest,
commencing on the anniversary date of the exercise of the option, PROVIDED,
HOWEVER, that if, subsequent to the date any or all of the Shares is awarded to
Purchaser's former spouse as provided above, the Company exercises its
Repurchase Option with respect to any or all of the Shares so awarded, the
amount remaining due under such promissory note shall be reduced by the
difference between the fair market value of such Shares determined as set forth
above and the amount received by Purchaser for such Shares upon exercise by the
Company of the Repurchase Option.
(b) TRANSFER OF RIGHTS TO COMPANY. In the event Purchaser does
not exercise his or her right to purchase all of the Shares awarded to
Purchaser's former spouse, Purchaser shall provide written notice to the Company
of the number of Shares available for purchase within thirty (30) days of the
entry of the decree or property settlement agreement. Subject to the provisions
of Section 166 and Chapter 5 of the General Corporation Law of California, the
Company shall then have the right to purchase any of the Shares not acquired by
the Purchaser directly from Purchaser's former spouse in the manner provided in
Sections 4(b)-4(e) above at the same price and on the same terms that were
available to Purchaser.
9. CONSENT OF SPOUSE. If Purchaser is married on the date of this
Agreement, Purchaser's spouse shall execute a Consent of Spouse in the form of
Exhibit A hereto, effective on the date hereof. Such consent shall not be
deemed to confer or convey to the spouse any rights in the Shares that do not
otherwise exist by operation of law or the agreement of the parties. If
Purchaser should marry or remarry subsequent to the date of this Agreement,
Purchaser shall within thirty (30) days thereafter obtain his or her new
spouse's acknowledgment of and consent to the existence and binding effect of
all restrictions contained in this Agreement by signing a Consent of Spouse in
the form of Exhibit A.
10. PURCHASER'S REPRESENTATIONS. In connection with the purchase of
the Shares, Purchaser hereby represents and warrants to the Company as follows:
(a) INVESTMENT INTENT; CAPACITY TO PROTECT INTERESTS. Purchaser
is purchasing the Shares solely for his or her own account for investment and
not with a view to or for sale in connection with any distribution of the Shares
or any portion thereof and not with any present intention of selling, offering
to sell or otherwise disposing of or distributing the Shares or any portion
thereof in any transaction other than a transaction exempt from registration
under the Act. Purchaser also represents that the entire legal and beneficial
interest of the Shares is being purchased, and will be held, for Purchaser's
account only, and neither in whole or in part for any other person. Purchaser
either (i) has a pre-existing business or personal relationship with the Company
or any of its officers, directors or controlling persons, or (ii) by reason of
Purchaser's business or financial experience or the business or financial
experience of Purchaser's professional advisors who are unaffiliated with and
who are not compensated by the Company or any affiliate or selling agent of the
Company, directly or indirectly, could be reasonably assumed to have the
capacity to evaluate the merits and risks of an investment in the Company and to
protect Purchaser's own interests in connection with this transaction.
A-6
(b) INFORMATION CONCERNING COMPANY. Purchaser has heretofore
discussed the Company and its plans, operations and financial condition with the
Company's officers and has heretofore received all such information as Purchaser
has deemed necessary and appropriate to enable Purchaser to evaluate the
financial risk inherent in making an investment in the Shares, and Purchaser has
received satisfactory and complete information concerning the business and
financial condition of the Company in response to all inquiries in respect
thereof.
(c) ECONOMIC RISK. Purchaser realizes that the purchase of the
Shares will be a highly speculative investment and involves a high degree of
risk, and Purchaser is able, without impairing his or her financial condition,
to hold the Shares for an indefinite period of time and to suffer a complete
loss on Purchaser's investment.
(d) RESTRICTED SECURITIES. Purchaser understands and
acknowledges that:
(i) the sale of the Shares has not been registered under
the Act, and the Shares must be held indefinitely unless subsequently registered
under the Act or an exemption from such registration is available and the
Company is under no obligation to register the Shares;
(ii) the share certificate representing the Shares will be
stamped with the legends specified in Section 7 hereof; and
(iii) the Company will make a notation in its records of
the aforementioned restrictions on transfer and legends.
(e) DISPOSITION UNDER RULE 144. Purchaser understands that the
Shares are restricted securities within the meaning of Rule 144 promulgated
under the Act; that unless the Shares have been issued pursuant to the exemption
provided by Rule 701, the exemption from registration under Rule 144 will not be
available in any event for at least two years from the date of purchase and
payment of the Shares (AND THAT PAYMENT BY A NOTE IS NOT DEEMED PAYMENT UNLESS
IT IS SECURED BY ASSETS OTHER THAN THE SHARES) and even then will not be
available unless: (i) a public trading market then exists for the Common Stock
of the Company; (ii) adequate information concerning the Company is then
available to the public; and (iii) other terms and conditions of Rule 144 are
complied with; and that any sale of the Shares may be made only in limited
amounts in accordance with such terms and conditions.
(f) FURTHER LIMITATIONS ON DISPOSITION. Without in any way
limiting his representations set forth above, Purchaser further agrees that he
shall in no event make any disposition of all or any portion of the Shares
unless and until:
(i) (A) There is then in effect a Registration Statement
under the Act covering such proposed disposition and such disposition is made in
accordance with said Registration Statement; OR, (B)(1) Purchaser shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a detailed statement of the circumstances surrounding the proposed
disposition, (2) Purchaser shall have furnished the Company with an opinion of
the Purchaser's
A-7
counsel to the effect that such disposition will not require registration of
such shares under the Act, AND (3) such opinion of Purchaser's counsel shall
have been concurred in by counsel for the Company and the Company shall have
advised Purchaser of such concurrence; AND,
(ii) The Shares proposed to be transferred are no longer
subject to the Repurchase Option set forth in Section 2 hereof and Purchaser
shall have complied with the Right of First Refusal set forth in Section 4
hereof.
11. FREEDOM OF ACTION BY IBM. Purchaser acknowledges and agrees that
he or she is familiar with the provisions of the Restated Certificate of
Incorporation of the Company, Exhibit A to the Plan, including Article VII
thereof, which defines the rights of International Business Machines
Corporation, a New York corporation ("IBM"), as a substantial shareholder of the
Company with respect to freedom of action by IBM to compete with the Company and
other matters.
12. ESCROW. As security for his faithful performance of the terms of
this Agreement and to ensure the availability for delivery of Purchaser's Shares
upon exercise of the Repurchase Option herein provided for, Purchaser agrees to
deliver to and deposit with Xxxxxx & Xxxxx LLP, legal counsel to the Company
(the "Escrow Agent"), as Escrow Agent in this transaction, two Stock Assignments
duly endorsed (with date and number of Shares blank) in the form attached hereto
as Exhibit B, together with the certificate or certificates evidencing the
Shares; said documents are to be held by the Escrow Agent pursuant to the Joint
Escrow Instructions of the Company and Purchaser set forth in Exhibit C attached
hereto and incorporated by this reference, which instructions shall also be
delivered to the Escrow Agent at the closing hereunder.
13. COMPLIANCE WITH INCOME TAX LAWS. Purchaser authorizes the
Company to withhold in accordance with applicable law from any compensation
payable to him or her any taxes required to be withheld by Federal, state or
local laws as a result of the purchase of the Shares. Furthermore, in the event
of any determination that the Company has failed to withhold a sum sufficient to
pay all withholding taxes due in connection with the purchase of the Shares,
Purchaser agrees to pay the Company the amount of such deficiency in cash within
five (5) days after receiving a written demand from the Company to do so,
whether or not Purchaser is an employee of the Company at that time.
14. ELECTION PURSUANT TO SECTION 83(b) OF INTERNAL REVENUE CODE OF
1986, AS AMENDED. Purchaser shall be responsible for filing with the Internal
Revenue Service an appropriate written notice of election pursuant to Section
83(b) of the Code, if Purchaser wishes to make such an election. Purchaser
shall notify the Company in writing if Purchaser files such an election within
thirty (30) days of the date of the sale herein contemplated. The Company
intends, in the event it does not receive from Purchaser evidence of such
filing, to claim a tax deduction for any amount which would otherwise be taxable
to Purchaser in the absence of such an election.
15. "MARKET STAND-OFF" AGREEMENT. Purchaser hereby agrees that he or
she shall not, to the extent reasonably requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, sell or
otherwise transfer or dispose (other than to donees who agree to be similarly
bound) of any Shares during the one hundred eighty (180)-day period following
the effective date of a
A-8
registration statement of the Company filed under the Securities Act; provided,
however, that: (i) all officers and directors of the Company and all other
persons with registration rights enter into similar agreements; and (ii) such
agreement shall be applicable only to the first such registration statement of
the Company which covers shares (or securities) to be sold on its behalf to the
public in an underwritten offering. Such agreement shall be in writing in a
form satisfactory to the Company and such underwriter. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to the Shares of each Shareholder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such one
hundred eighty (180)-day period.
16. ENFORCEMENT. Purchaser agrees that a violation on his or her
part of any of the terms of this Agreement (other than those contained in
Sections 12 and 13, above) may cause irreparable damage to the Company, the
exact amount of which is impossible to ascertain, and for that reason agrees
that the Company shall be entitled to exercise its right to effect a repurchase
and transfer of the Shares pursuant to Section 2 hereof or to a decree of
specific performance of the terms hereof or an injunction restraining further
violation, said right to be in addition to any other remedies of said parties.
17. CONTROLLING PROVISIONS. To the extent that there may be any
conflict between the provisions of this Agreement and the provisions contained
in the Company's Bylaws on the transfer or restriction on transfer of Shares,
the terms of this Agreement shall be controlling. This Agreement may not be
modified except by a writing signed by the party to be bound.
18. OWNERSHIP, VOTING RIGHTS, DUTIES. This Agreement shall not
affect in any way the ownership, voting rights or other rights or duties of
Purchaser, except as specifically provided herein.
19. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or on the day sent by facsimile transmission if a true
and correct copy is sent the same day by first class mail, postage prepaid, or
by dispatch by an internationally recognized express courier service.
20. BINDING EFFECT. This Agreement shall inure to the benefit of the
Company and its successors and assigns and, subject to the restrictions on
transfer set forth herein, be binding upon Purchaser, his permitted transferees,
heirs, legatees, executors, administrators and legal successors, who shall hold
the Shares subject to the terms hereof.
21. GOVERNING LAW. This Agreement, together with the exhibits
hereto, shall be governed by and construed in accordance with the laws of the
State of California, as such laws are applied to contracts entered into by
residents of such state and performed in such state.
22. ENTIRE AGREEMENT. This Agreement supersedes all previous written
or oral agreements between the parties regarding the subject matter hereof, and
constitutes the entire agreement of the parties regarding such subject matter.
This
A-9
Agreement may not be modified or terminated except by a writing executed by all
of the parties hereto.
23. NOT EMPLOYMENT CONTRACT. Nothing in this Agreement shall affect
in any manner whatsoever the right or power of the Purchaser or the Company to
terminate Purchaser's employment, for any reason or for no reason, with or
without cause, subject to the provisions of applicable law. This Agreement is
not an employment contract.
24. GENDER. The masculine, feminine or neuter pronouns used herein
shall be interpreted without regard to gender.
25. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
26. SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect
without being impaired or invalidated in any way and shall be construed in
accordance with the purposes and tenor and effect of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
NETOBJECTS, INC. PURCHASER
By: By:
------------------------- ---------------------------
Title: Address:
---------------------- ----------------------
------------------------------
------------------------------
EXHIBIT A
CONSENT OF SPOUSE
I, ________________, spouse of ________________, acknowledge that I
have read the Restricted Stock Purchase Agreement dated as of _______________,
19__, to which this Consent is attached as Exhibit A (the "Agreement") and that
I know its contents. I am aware that by its provisions (a) my spouse and
NetObjects, Inc. (the "Company") have the option to purchase all the Shares of
the Company of which I may become possessed as a result of a gift from my spouse
or a court decree and/or any property settlement in any domestic litigation, (b)
the Company has the option to purchase certain Shares of the Company which my
spouse owns pursuant to the Agreement including any interest I might have
therein, upon termination of his
A-10
employment under circumstances set forth in the Agreement, and (c) certain other
restrictions are imposed upon the sale or other disposition of the Shares.
I hereby agree that my interest, if any, in the Shares subject to the
Agreement shall be irrevocably bound by the Agreement and further understand and
agree that any community property interest I may have in the Shares shall be
similarly bound by the Agreement.
I agree to the sale and purchase described in Section 8 of the
Agreement and I hereby consent to the sale of the Shares by my spouse or his
legal representative in accordance with the provisions of the Agreement.
Further, as part of the consideration for the Agreement, I agree that at my
death, if I have not disposed of any interest of mine in the Shares by an
outright bequest of said shares to my spouse, then my spouse and the Company
shall have the same rights against my legal representative to purchase any
interest of mine in the Shares as they would have had pursuant to Section 8 of
the Agreement if I had acquired the Shares pursuant to a court decree in
domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN
THE AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the ______ of ____________, 19__.
_________________________________
A-11
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ____________________________ hereby sells, assigns
and transfers unto _____________________________ __________________
(___________) shares of the Common Stock of NetObjects, Inc., a Delaware
corporation, standing in the undersigned's name on the books of said corporation
represented by Certificate No. _______________, and do hereby irrevocably
constitute and appoint ______________________________ as the undersigned's agent
and attorney-in-fact to transfer the said stock on the books of the said
corporation with full power of substitution in the premises.
Dated:_______________ , 19 __ _______________________________
A-12
EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ____________________________ hereby sells, assigns
and transfers unto _____________________________ __________________
(___________) shares of the Common Stock of NetObjects, Inc., a Delaware
corporation, standing in the undersigned's name on the books of said corporation
represented by Certificate No. _______________, and do hereby irrevocably
constitute and appoint ______________________________ as the undersigned's agent
and attorney-in-fact to transfer the said stock on the books of the said
corporation with full power of substitution in the premises.
Dated:________________, 19__ _______________________________
A-13
EXHIBIT C
JOINT ESCROW INSTRUCTIONS
___________, 199_
Xxxxxx & Xxxxx LLP
000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Gentlemen:
As Escrow Agent for both NetObjects, Inc., a Delaware corporation (the
"Company"), and the undersigned purchaser of common stock (the "Shares") of the
Company (the "Purchaser"), you are hereby authorized and directed to hold the
documents delivered to you pursuant to the terms of that certain Restricted
Stock Purchase Agreement (the "Agreement"), dated as of the date hereof, to
which a copy of these Joint Escrow Instructions is attached as Exhibit C, in
accordance with the following instructions:
1. In the event the Company and/or any assignee of the Company
(referred to collectively for convenience herein as the "Company") shall elect
to exercise the Repurchase Option set forth in the Agreement, the Company shall
give to Purchaser and you a written notice specifying the number of Shares to be
purchased, the purchase price, and the time for a closing hereunder at the
principal office of the Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock
assignments necessary for the transfer in question, (b) to fill in the number of
Shares being transferred, and (c) to deliver same, together with the
certificates evidencing the Shares to be transferred, to the Company against the
simultaneous delivery to you of the purchase price (by check or evidence of
cancellation of indebtedness of Purchaser to the Company) for the number of
Shares being purchased pursuant to the exercise of the Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you
any certificates evidencing the Shares to be held by you hereunder and any
additions and substitutions to said Shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all stock certificates, stock assignments, or other documents
necessary or appropriate to make such securities
A-14
negotiable and complete any transaction herein contemplated. Subject to the
provisions of this Section 3, Purchaser shall exercise all rights and privileges
of a shareholder of the Company while the Shares are held by you.
4. This escrow shall terminate at such time as there are no longer
any Shares subject to the Repurchase Option.
5. If at the time of termination of this escrow you should have in
your possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of same to Purchaser and shall be discharged of
all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith and in the exercise of your own good judgment, and any act done or
omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or company,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
In case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or company by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of any failure
to confirm the identity, authorities or rights of the parties executing or
delivering or purporting to execute or deliver the Agreement or any documents or
papers deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary or proper to advise you in connection with
your obligations hereunder, may rely upon the advice of such counsel, and may
pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate
if you shall cease to be counsel to the Company or if you shall resign by
written notice to
A-15
each party. In the event of any such termination, the Company shall appoint a
successor Escrow Agent.
13. If you reasonably require other or further instructions in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or rights of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree, or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
15. 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 each of the other parties entitled to
such notice at the following addresses, or at such other addresses as a party
may designate by ten (10) days' advance written notice to each of the other
parties hereto.
COMPANY: NetObjects, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
PURCHASER:
-----------------------------------
Address:
------------------------
------------------------
ESCROW AGENT: Xxxxxx & Xxxxx LLP
000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
16. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not become
a party to the Agreement.
A-16
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
Very truly yours,
NetObjects, Inc.
a Delaware corporation
By:
---------------------------
Title:
--------------------------
PURCHASER:
-------------------------------
Agreed to and accepted as of
the date set forth above.
ESCROW AGENT:
By:
---------------------------
Xxxx X. Xxxxx, as Escrow Agent
A-17
