Stock Pledge Agreement - NetZero Inc. and Mark Goldston
NETZERO, INC.
STOCK PLEDGE AGREEMENT
AGREEMENT made as of this 20th day of March, 1999 by and
between NetZero, Inc., a California corporation (the "Corporation") and Mark
Goldston ("Pledgor").
RECITALS
A. In connection with the purchase of 4,190,922 shares of the
Corporation's Common Stock (the "Purchased Shares") on the date of this
Agreement from the Corporation, Pledgor has issued that certain promissory note
(the "Note") dated March 20, 1999 payable to the order of the Corporation in the
principal amount of Six Hundred Twenty-Eight Thousand Six Hundred Thirty-Eight
Dollars and Thirty Cents ($628,638.30).
B. Such Note is secured by the Purchased Shares and other
collateral upon the terms set forth in this Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. 1. GRANT OF SECURITY INTEREST. Pledgor hereby grants the
Corporation a security interest in, and assigns, transfers to and pledges with
the Corporation, the following securities and other property (collectively, the
"Collateral"):
(i) (i) the Purchased Shares delivered to and
deposited with the Corporation as collateral for the Note;
(ii) (ii) any and all new, additional or different
securities or other property subsequently distributed with respect to
the Purchased Shares which are to be delivered to and deposited with
the Corporation pursuant to the requirements of Paragraph 3 of this
Agreement;
(iii) (iii) any and all other property and money which is
delivered to or comes into the possession of the Corporation pursuant
to the terms of this Agreement; and
(iv) (iv) the proceeds of any sale, exchange or
disposition of the property and securities described in subparagraphs
(i), (ii) or (iii) above.
2. 2. WARRANTIES. Pledgor hereby warrants that Pledgor is the
owner of the Collateral and has the right to pledge the Collateral and that the
Collateral is free from all liens, adverse claims and other security interests
(other than those created hereby).
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3. 3. DUTY TO DELIVER. Any new, additional or different
securities or other property (other than regular cash dividends) which may now
or hereafter become distributable with respect to the Collateral by reason of
(i) any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the Common Stock as a class without
the Corporation's receipt of consideration or (ii) any merger, consolidation or
other reorganization affecting the capital structure of the Corporation shall,
upon receipt by Pledgor, be promptly delivered to and deposited with the
Corporation as part of the Collateral hereunder. Any such securities shall be
accompanied by one or more properly endorsed stock power assignments.
4. 4. PAYMENT OF TAXES AND OTHER CHARGES. Pledgor shall pay,
prior to the delinquency date, all taxes, liens, assessments and other charges
against the Collateral, and in the event of Pledgor's failure to do so, the
Corporation may at its election pay any or all of such taxes and other charges
without contesting the validity or legality thereof. The payments so made shall
become part of the indebtedness secured hereunder and until paid shall bear
interest at the minimum per annum rate required to avoid the imputation of
interest income to the Corporation and compensation income to Pledgor under the
federal tax laws.
5. 5. SHAREHOLDER RIGHTS. So long as there exists no event of
default under Paragraph 10 of this Agreement, Pledgor may exercise all
shareholder voting rights and be entitled to receive any and all regular cash
dividends paid on the Collateral and all proxy statements and other shareholder
materials pertaining to the Collateral.
6. 6. RIGHTS AND POWERS OF CORPORATION. The Corporation may,
without obligation to do so, exercise at any time and from time to time one or
more of the following rights and powers with respect to any or all of the
Collateral:
(i) (i) subject to the applicable limitations of
Paragraph 9, accept in its discretion other property of Pledgor in
exchange for all or part of the Collateral and release Collateral to
Pledgor to the extent necessary to effect such exchange, and in such
event the other property received in the exchange shall become part of
the Collateral hereunder;
(ii) (ii) perform such acts as are necessary to
preserve and protect the Collateral and the rights, powers and remedies
granted with respect to such Collateral by this Agreement; and
(iii) (iii) transfer record ownership of the Collateral
to the Corporation or its nominee and receive, endorse and give receipt
for, or collect by legal proceedings or otherwise, dividends or other
distributions made or paid with respect to the Collateral, PROVIDED AND
ONLY IF there exists at the time an outstanding event of default under
Paragraph 10 of this Agreement. Any cash sums which the Corporation may
so receive shall be applied to the payment of the Note and any other
indebtedness secured hereunder, in such order of application as the
Corporation deems appropriate. Any remaining cash shall be paid over to
Pledgor.
Any action by the Corporation pursuant to the provisions of
this Paragraph 6 may be taken without notice to Pledgor. Expenses reasonably
incurred in connection with such action
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shall be payable by Pledgor and form part of the indebtedness secured
hereunder as provided in Paragraph 12.
7. 7. CARE OF COLLATERAL. The Corporation shall exercise
reasonable care in the custody and preservation of the Collateral. However, the
Corporation shall have no obligation to (i) initiate any action with respect to,
or otherwise inform Pledgor of, any conversion, call, exchange right, preemptive
right, subscription right, purchase offer or other right or privilege relating
to or affecting the Collateral, (ii) preserve the rights of Pledgor against
adverse claims or protect the Collateral against the possibility of a decline in
market value or (iii) take any action with respect to the Collateral requested
by Pledgor unless the request is made in writing and the Corporation determines
that the requested action will not unreasonably jeopardize the value of the
Collateral as security for the Note and other indebtedness secured hereunder.
Subject to the limitations of Paragraph 9, the Corporation may
at any time release and deliver all or part of the Collateral to Pledgor.
8. 8. TRANSFER OF COLLATERAL. In connection with the transfer
or assignment of the Note (whether by negotiation, discount or otherwise), the
Corporation may transfer all or any part of the Collateral, and the transferee
shall thereupon succeed to all the rights, powers and remedies granted the
Corporation hereunder with respect to the Collateral so transferred. Upon such
transfer, the Corporation shall be fully discharged from any further
responsibility for the transferred Collateral and all liability for the
Collateral arising after the date of such transfer.
9. 9. RELEASE OF COLLATERAL. Provided all indebtedness
secured hereunder (other than payments not yet due and payable under the Note)
shall at the time have been paid in full and there does not otherwise exist any
event of default under Paragraph 10, the Purchased Shares, together with any
additional Collateral which may hereafter be pledged and deposited hereunder,
shall be released from pledge and returned to Pledgor in accordance with the
following provisions:
(i) (i) Promptly following (a) payment or prepayment
of principal of the Note, together with payment of all accrued interest
to date, one or more of the Purchased Shares held as Collateral
hereunder shall (subject to the applicable limitations of Paragraphs
9(iii) and 9(v) below) be released to Pledgor or (b) a determination
that Excess Value exists, one or more of the Purchased Shares held as
Collateral hereunder shall (subject to the applicable limitations of
Paragraphs 9(iii) and 9(v) below) be released to Pledgor; provided that
if any Purchased Shares are released pursuant to the immediately
preceding clause and if the fair market value of the Common Stock and
all other Collateral which would otherwise remain in pledge hereunder
after such release at any time falls below one hundred and fifty
percent (150%) of the unpaid principal and accrued interest under the
Note, Pledgor shall contribute additional collateral hereunder to raise
such fair market value of the Purchased Shares and all other Collateral
in pledge up to such 150% level; provided, further, that in no event
shall Pledgor be required to make any additional contributions
hereunder in any amount greater than the amount which the fair market
value of that the original number of Purchased Shares would represent
as of the date of such contribution. The number of shares to be so
released shall
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be equal to the number obtained, as the case may be, by (x)
multiplying (i) the total number of Purchased Shares held under this
Agreement at the time of the payment or prepayment, by (ii) a
fraction, the numerator of which shall be the amount of the
principal paid or prepaid and the denominator of which shall be the
unpaid principal balance of the Note immediately prior to such
payment or prepayment, or (y) multiplying (i) the total number of
Purchased Shares held under this Agreement at the time of the
payment or prepayment, by (ii) a fraction, the numerator of which
shall be the Excess Value and the denominator of which shall be the
fair market value of the Purchased Shares and all other Collateral
held in pledge hereunder immediately prior to any such release. In
no event, however, shall any fractional shares be released. For
purposes of this Agreement, "Excess Value" shall mean the excess
amount, if any, that the fair market value of the Purchased Shares
and Collateral then held in pledge is over 150% of the total unpaid
principal and accrued interest of the Note, as such foregoing
amounts are determined each time that Optionee requests a release of
shares from pledge.
(ii) (ii) Any additional Collateral which may hereafter
be pledged and deposited with the Corporation (pursuant to the
requirements of Paragraph 3) with respect to the Purchased Shares shall
be released at the same time the particular shares of Common Stock to
which the additional Collateral relates are to be released in
accordance with the applicable provisions of Paragraph 9(i).
(iii) (iii) Under no circumstances, however, shall any
Purchased Shares or any other Collateral be released if previously
applied to the payment of any indebtedness secured hereunder. In
addition, in no event shall any Purchased Shares or other Collateral be
released pursuant to the provisions of Paragraph 9(i) or 9(ii) if, and
to the extent, the fair market value of the Common Stock and all other
Collateral which would otherwise remain in pledge hereunder after such
release were effected would be less than the unpaid principal and
accrued interest under the Note.
(iv) (iv) For all valuation purposes under this
Agreement, the fair market value per share of Common Stock on any
relevant date shall be determined in accordance with the following
provisions:
(A) (A) If the Common Stock is at the time
traded on the Nasdaq National Market, the fair market value
shall be the closing selling price per share of Common Stock
on the date in question, as such prices are reported by the
National Association of Securities Dealers on its Nasdaq
system or any successor system. If there is no reported
closing selling price for the Common Stock on the date in
question, then the closing selling price on the last preceding
date for which such quotation exists shall be determinative of
fair market value.
(B) (B) If the Common Stock is at the time
listed on the New York Stock Exchange or any other securities
exchange, then the fair market value shall be the closing
selling price per share of Common Stock on the date in
question on the securities exchange serving as the primary
market for the Common Stock, as such price is officially
quoted in the composite tape of transactions on such exchange.
If there is no reported sale of Common Stock on such exchange
on the date in question, then the fair market value shall be
the
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closing selling price on the exchange on the last preceding
date for which such quotation exists.
(C) (C) If the Common Stock is at the time
neither listed on any securities exchange nor traded on the
Nasdaq National Market, the fair market value shall be
determined by the Corporation's Board of Directors after
taking into account such factors as the Board shall deem
appropriate; provided, however that in the event Pledgor
disagrees with the Board's determination, Pledgor and the
Board shall agree in good faith on such valuation. If the
Pledgor and Corporation do not so agree, Pledgor shall have
the right, but not more often than once every six (6) months
on a rolling basis, to require the appraisal of the
Corporation. If Corporation and Pledgor cannot promptly agree
upon an independent, experienced appraiser who is a member of
a recognized professional association of business appraisers
(an "appraiser"), then each of the Corporation and Pledgor
shall appoint such independent, experienced appraiser who
shall determine the value of the Common Stock. If the higher
of the two appraisals is not more than 10 percent more than
the lower of the appraisals, the fair market value shall be
the average of the two appraisals (which determination shall
be final and binding on the parties and enforceable in any
court of competent jurisdiction); provided that if the two
appraisals are more than 10 percent apart the two appraisers
shall appoint a third appraiser who shall determine the value
of the Common Stock, which determination shall be final and
binding on the parties and enforceable in any court of
competent jurisdiction. All costs of such appraisal shall be
equally shared by the Corporation and Employee.
(v) (v) In the event the Collateral becomes in whole
or in part comprised of "margin securities" within the meaning of
Section 207.2(i) of Regulation G of the Federal Reserve Board, then no
Collateral shall thereafter be substituted for any Collateral under the
provisions of Paragraph 6(i) or be released under Paragraph 9(i) or
(ii), unless there is compliance with each of the following additional
requirements:
(A) (A) The substitution or release must
not increase the amount by which the indebtedness secured
hereunder at the time of such substitution or release exceeds
the maximum loan value (as defined below) of the Collateral
immediately prior to such substitution or release.
(B) (B) The substitution or release must
not cause the amount of indebtedness secured hereunder at the
time of such substitution or release to exceed the maximum
loan value of the Collateral remaining after such substitution
or release is effected.
(C) (C) For purposes of this Paragraph
9(v), the maximum loan value of each item of Collateral shall
be determined on the day the substitution or release is to be
effected and shall, in the case of the shares of Common Stock
and any additional Collateral (other than margin securities),
equal the good faith loan value thereof (as defined in Section
207.2(e)(1) of Regulation G) and shall, in the case of all
margin securities (other than the Common Stock), equal fifty
percent (50%) of the current market value of such securities.
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10. 10. EVENTS OF DEFAULT. The occurrence of one or more of the
following events shall constitute an event of default under this Agreement:
(i) (i) the failure of Pledgor to pay, when due under
the Note, any installment of principal or accrued interest after any
grace period set forth in the Note has expired, if any; or
(ii) (ii) the wilful failure of Pledgor to perform any
material obligation imposed upon Pledgor by reason of this Agreement
within 30 days following written notice to Pledgor detailing such
failure; or
(iii) (iii) the material breach of any warranty of
Pledgor contained in Paragraph 2 of this Agreement.
Upon the occurrence of any such event of default, the
Corporation may, at its election, declare the Note and all other indebtedness
secured hereunder to become immediately due and payable and may exercise any or
all of the rights and remedies granted to a secured party under the provisions
of the California Uniform Commercial Code (as now or hereafter in effect),
including (without limitation) the power to dispose of the Collateral by public
or private sale or to accept the Collateral in full payment of the Note and all
other indebtedness secured hereunder.
Any proceeds realized from the disposition of the Collateral
pursuant to the foregoing power of sale shall be applied first to the payment of
reasonable expenses incurred by the Corporation in connection with the
disposition and then to the payment of the Note and finally to any other
indebtedness secured hereunder. Any surplus proceeds shall be paid over to
Pledgor. However, in the event such proceeds prove insufficient to satisfy all
obligations of Pledgor under the Note which are recourse to Pledgor, then
Pledgor shall remain personally liable for the remaining obligations under the
Note which are recourse to Pledgor.
11. 11. OTHER REMEDIES. The rights, powers and remedies granted
to the Corporation pursuant to the provisions of this Agreement shall be in
addition to all rights, powers and remedies granted to the Corporation under any
statute or rule of law. Any forbearance, failure or delay by the Corporation in
exercising any right, power or remedy under this Agreement shall not be deemed
to be a waiver of such right, power or remedy. Any single or partial exercise of
any right, power or remedy under this Agreement shall not preclude the further
exercise thereof, and every right, power and remedy of the Corporation under
this Agreement shall continue in full force and effect unless such right, power
or remedy is specifically waived by an instrument executed by the Corporation.
12. 12. COSTS AND EXPENSES. All costs and expenses (including
reasonable attorneys fees) incurred by the Corporation in the exercise or
enforcement of any right, power or remedy granted it under this Agreement shall
become part of the indebtedness secured hereunder and shall constitute a
personal liability of Pledgor payable immediately upon demand and bearing
interest until paid at the minimum per annum rate required to avoid the
imputation of interest income to the Corporation and compensation income to
Pledgor under the federal tax laws.
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13. 13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without resort
to that State's conflict-of-laws rules.
14. 14. SUCCESSORS. This Agreement shall be binding upon the
Corporation and its successors and assigns and upon Pledgor and the executors,
heirs and legatees of Pledgor's estate.
15. 15. SEVERABILITY. If any provision of this Agreement is
held to be invalid under applicable law, then such provision shall be
ineffective only to the extent of such invalidity, and neither the remainder of
such provision nor any other provisions of this Agreement shall be affected
thereby.
IN WITNESS WHEREOF, this Agreement has been executed by
Pledgor and the Corporation on this 20th day of March, 1999.
NETZERO PLEDGOR
/s/ RONALD T. BURR /s/ MARK GOLDSTON
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By: Ronald T. Burr Mark Goldston
Title: President
Address:
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NETZERO, INC.
AMENDMENT TO STOCK PLEDGE AGREEMENT
THIS AMENDMENT TO STOCK PLEDGE AGREEMENT (this "Amendment") is dated as
of May 14, 1999, between Mark Goldston ("Goldston") and NetZero, Inc. (the
"Company"). All capitalized terms used herein without definition shall have the
meanings ascribed to them in that certain Stock Pledge Agreement dated as of
March 20, 1999 (the "Stock Pledge Agreement"), between Goldston and the Company.
In consideration of good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Paragraph 1 of the Stock Pledge Agreement is hereby amended
and restated in its entirety as follows:
"GRANT OF SECURITY INTEREST. Pledgor hereby grants the
Corporation a security interest in, and assigns, transfers to
and pledges with the Corporation, the following securities and
other property (collectively, the "Collateral"):
(i) the Purchased Shares delivered to and deposited with the
Corporation as collateral for the Note;
(ii) 36,232 shares of the Corporation's Series D Preferred
Stock (the "Pledged Series D Stock");
(iii) any and all new, additional or different securities or
other property subsequently distributed with respect to the
Purchased Shares or the Pledged Series D Stock which are to be
delivered to and deposited with the Corporation pursuant to
the requirements of Paragraph 3 of this Agreement;
(iv) any and all other property and money which is delivered
to or comes into the possession of the Corporation pursuant to
the terms of this Agreement; and
(v) the proceeds of any sale, exchange or disposition of the
property and securities described in subparagraphs (i), (ii),
(iii) or (iv) above."
2. Paragraphs 9(i) through (iv) of the Stock Pledge Agreement are
hereby amended and restated in their entirety as follows:
"RELEASE OF COLLATERAL. Provided all indebtedness secured
hereunder (other than payments not yet due and payable under
the Note) shall at the time have been paid in full and there
does not otherwise exist any event of default under Paragraph
10, the Purchased Shares and the Pledged Series
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D Stock, together with any additional Collateral which may
hereafter be pledged and deposited hereunder, shall be
released from pledge and returned to Pledgor in accordance
with the following provisions:
(i) Promptly following (a) payment or prepayment of principal
of the Note, together with payment of all accrued interest to
date, one or more of the Purchased Shares or the Pledged
Series D Stock held as Collateral hereunder shall (subject to
the applicable limitations of Paragraphs 9(iii), (v) and (vi)
below) be released to Pledgor or (b) a determination that
Excess Value exists, one or more of the Purchased Shares or
the Pledged Series D Stock held as Collateral hereunder shall
(subject to the applicable limitations of Paragraphs 9(iii),
(v) and (vi) below) be released to Pledgor; provided that if
any Purchased Shares or Pledged Series D Stock are released
pursuant to the immediately preceding clause and if the fair
market value of the Purchased Shares, Pledged Series D Stock
and all other Collateral which would otherwise remain in
pledge hereunder after such release at any time falls below
one hundred and fifty percent (150%) of the unpaid principal
and accrued interest under the Note, Pledgor shall contribute
additional collateral hereunder to raise such fair market
value of the Purchased Shares, the Pledged Series D Stock, and
all other Collateral in pledge up to such 150% level;
provided, further, that in no event shall Pledgor be required
to make any additional contributions hereunder in any amount
greater than the amount which the fair market value of the
original number of Purchased Shares would represent as of the
date of such contribution. The number of shares to be so
released shall be equal to the number obtained, as the case
may be, by (x) multiplying (i) the total number of shares of
Common Stock represented by the Purchased Shares and the
Pledged Series D Stock (on an as-converted basis) held under
this Agreement at the time of the payment or prepayment, by
(ii) a fraction, the numerator of which shall be the amount of
the principal paid or prepaid and the denominator of which
shall be the unpaid principal balance of the Note immediately
prior to such payment or prepayment, or (y) multiplying (i)
the total number of shares of Common Stock represented by the
Purchased Shares and the Pledged Series D Stock (on an
as-converted basis) held under this Agreement at the time of
the payment or prepayment, by (ii) a fraction, the numerator
of which shall be the Excess Value and the denominator of
which shall be the fair market value of the Purchased Shares,
the Pledged Series D Stock and all other Collateral held in
pledge hereunder immediately prior to any such release. In no
event, however, shall any fractional shares be released. For
purposes of this Agreement, "Excess Value" shall mean the
excess amount, if any, that the fair market value of the
Purchased Shares, the Pledged Series D Stock and Collateral
then held in pledge is over 150% of the total unpaid principal
and accrued interest of the Note, as such foregoing amounts
are determined each time that Optionee requests a release of
shares from pledge.
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(ii) Any additional Collateral which may hereafter be pledged
and deposited with the Corporation (pursuant to the
requirements of Paragraph 3) with respect to the Purchased
Shares or the Pledged Series D Stock shall be released at the
same time the particular shares of Purchased Shares or Pledged
Series D Stock to which the additional Collateral relates are
to be released in accordance with the applicable provisions of
Paragraph 9(i).
(iii) Under no circumstances, however, shall any Purchased
Shares, Pledged Series D Stock or any other Collateral be
released if previously applied to the payment of any
indebtedness secured hereunder. In addition, in no event shall
any Purchased Shares, Pledged Series D Stock, or other
Collateral be released pursuant to the provisions of Paragraph
9(i) or 9(ii) if, and to the extent, the fair market value of
the Purchased Shares, Pledged Series D Stock and all other
Collateral which would otherwise remain in pledge hereunder
after such release were effected would be less than the unpaid
principal and accrued interest under the Note.
(iv) For all valuation purposes under this Agreement, the fair
market value per share of Purchased Shares and/or Pledged
Series D Stock on any relevant date shall be determined in
accordance with the following provisions:
(A) If the security is at the time traded on the Nasdaq
National Market, the fair market value shall be the closing
selling price per share of such security on the date in
question, as such prices are reported by the National
Association of Securities Dealers on its Nasdaq system or any
successor system. If there is no reported closing selling
price for the security on the date in question, then the
closing selling price on the last preceding date for which
such quotation exists shall be determinative of fair market
value.
(B) If the security is at the time listed on the New York
Stock Exchange or any other securities exchange, then the fair
market value shall be the closing selling price per share of
such security on the date in question on the securities
exchange serving as the primary market for such security, as
such price is officially quoted in the composite tape of
transactions on such exchange. If there is no reported sale of
such security on such exchange on the date in question, then
the fair market value shall be the closing selling price on
the exchange on the last preceding date for which such
quotation exists.
(C) If the security is at the time neither listed on any
securities exchange nor traded on the Nasdaq National Market,
the fair market value shall be determined by the Corporation's
Board of Directors after taking into account such factors as
the Board shall deem appropriate; provided, however that in
the event Pledgor disagrees with the Board's determination,
Pledgor and the Board shall agree in good faith on such
valuation. If the Pledgor and Corporation do not so agree,
Pledgor shall
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have the right, but not more often than once every six (6)
months on a rolling basis, to require the appraisal of the
Corporation. If the Corporation and Pledgor cannot promptly
agree upon an independent, experienced appraiser who is a
member of a recognized professional association of business
appraisers (an "appraiser"), then each of the Corporation
and Pledgor shall appoint such independent, experienced
appraiser who shall determine the value of the security. If
the higher of the two appraisals is not more than 10
percent more than the lower of the appraisals, the fair
market value shall be the average of the two appraisals
(which determination shall be final and binding on the
parties and enforceable in any court of competent
jurisdiction); provided that if the two appraisals are more
than 10 percent apart the two appraisers shall appoint a
third appraiser who shall determine the value of the
security, which determination shall be final and binding on
the parties and enforceable in any court of competent
jurisdiction. All costs of such appraisal shall be equally
shared by the Corporation and Employee."
3. Paragraph 9(vi) is hereby added to the Stock Pledge Agreement as
follows:
"(vi) If any Purchased Shares or Pledged Series D Stock are to
be released from their pledge hereunder pursuant to Paragraph
9(i), the order of such release shall be Purchased Shares
first, and then Pledged Series D Stock. No shares of Pledged
Series D Stock shall be released from the pledge hereunder
until all Purchased Shares have been released from their
pledge hereunder."
4. In all other respects, the Stock Pledge Agreement shall remain
unchanged and in full force and effect in accordance with the terms thereof.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Amendment as of the date first above written.
NETZERO, INC.
By: /s/ RONALD T. BURR
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Ronald T. Burr, President
/s/ MARK R. GOLDSTON
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MARK R. GOLDSTON
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