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Progressive Networks Buy Sell Agreement 03-31-1995

PROGRESSIVE NETWORKS, INC.

 

SHAREHOLDERS' BUY-SELL AGREEMENT

 

 

 

dated

 

March 31, 1995

 

 

 

 

 

 

 

 

 

 

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TABLE OF CONTENTS

 

 

<TABLE>

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PAGE

<S> <C> <C>

RECITALS ..................................................................... 1

 

AGREEMENT ..................................................................... 1

1. General Restriction on Transfer ............................. 1

2. Exempt Transfers ............................................. 1

2.1 Transfers to Company ............................... 1

2.2 Transfers to Family ................................. 2

3. Transfers ................................................... 2

3.1 Offer Notice ....................................... 2

3.2 Offer to Sell ....................................... 2

3.3 Share Purchase Procedures ........................... 2

4. Terms of Sale and Closing ................................... 4

5. Other Events Constituting an Offer to Transfer Shares ....... 4

5.1 Repurchase Events ................................... 4

5.2 Purchase of Shares ................................. 5

5.3 Offer Notice; Offered Price ......................... 5

5.4 Payment for the Shares ............................. 5

6. Determined Price ............................................. 6

7. Effect of Non-complying Transfer ............................. 7

8. Confidentiality ............................................. 7

9. Spouses ..................................................... 7

9.1 Spousal Consent ......................................... 7

9.2 Future Spouses ......................................... 7

9.3 Agreement Drafted by Counsel to the Company ............. 8

10. Independent Counsel ......................................... 8

11. Miscellaneous Provisions ..................................... 8

11.1 Further Assurances ................................. 8

11.2 Attorney's Fees ..................................... 8

11.3 Construction and Venue ............................. 8

11.4 Number and Gender ................................... 8

11.5 Section Headings ................................... 8

11.6 Legend on Shares ................................... 8

11.7 Amendments ......................................... 9

11.8 Successors and Assigns ............................. 9

11.9 Testamentary Provisions ............................. 9

11.10 Severability ....................................... 9

11.11 Entire Agreement ................................... 9

11.12 Termination ......................................... 9

11.13 Notices ............................................. 9

11.14 Counterparts ....................................... 10

11.15 Confirmation of Definition of Shares ............... 10

</TABLE>

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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SHAREHOLDERS' BUY-SELL AGREEMENT

 

 

THIS SHAREHOLDERS' BUY-SELL AGREEMENT (this "Agreement") is entered

into effective as of the 31st day of March, 1995, by and among Progressive

Networks, Inc., a Washington corporation (the "Company"), Robert Glaser (the

"Founder"), and the holders of shares of common stock in the Company acquired

(i) by exercising options under the Company's 1995 Stock Option Plan, as

hereafter amended, or under any other stock option plan or similar compensation

plan adopted after the date hereof by the Company, or (ii) pursuant to a stock

bonus, warrant or other form of security issued or granted for services

rendered to the Company (together, the "Shares"), who sign a "Consent to Be

Bound" by this Agreement in the form of attached Exhibit A and who shall be

listed on attached Exhibit B. The Founder and the persons listed on attached

Exhibit B shall be referred to, collectively, as the "Shareholders" and,

individually, as a "Shareholder."

 

RECITALS

 

The Shareholders and the Company believe it is in their and the

Company's best interests to restrict the free transferability of the Shares to

assure continuity in the control and management of the corporation.

 

NOW, THEREFORE, the parties agree as follows:

 

AGREEMENT

 

1. GENERAL RESTRICTION ON TRANSFER. No Share or any interest

therein shall be validly sold, assigned, awarded, pledged, encumbered,

confirmed, or otherwise transferred, for consideration or otherwise, whether

voluntarily, involuntarily, or by operation of law (collectively, a

"Transfer"), except in accordance with the provisions of this Agreement. A

purported transferee of a Transfer not made in accordance with the provisions

of this Agreement shall not be recognized as a shareholder of the Company for

any purpose whatsoever. A Transfer or attempt to effect a Transfer subject to

the provisions of this Agreement shall be deemed to occur whenever any interest

in any Share is transferred or is attempted to be transferred, voluntarily,

involuntarily, or by operation of law, irrespective of whether any change in

the record ownership of the Shares occurs.

 

2. EXEMPT TRANSFERS.

 

2.1 TRANSFERS TO COMPANY. Notwithstanding anything in

this Agreement to the contrary, a Shareholder may effect a Transfer of all or

any portion of his or her Shares to the Company.

 

2.2 TRANSFERS TO FAMILY. Notwithstanding anything in

this Agreement to the contrary, a Shareholder may, during his life, effect a

Transfer of all or any portion of his

 

 

 

 

 

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or her Shares to his or her spouse, or his or her lineal ancestors or

descendants, or a trustee of a trust for the exclusive benefit of such spouse

or ancestors or descendants (the "Permitted Transferees," who would then become

"Shareholders"), provided that the transferee shall execute a "Consent to be

Bound" by this Agreement in the form of attached Exhibit A.

 

3. TRANSFERS.

 

3.1 OFFER NOTICE. If any Shareholder (the "Transferor")

desires to effect a Transfer of any or all of his or her Shares to any person

other than a Permitted Transferee or the Company pursuant to a bona fide

written offer, the Transferor shall (a) give notice to the Company (an "Offer

Notice") specifying the name, address and telephone number of the proposed

transferee, the number of Shares proposed to be transferred (the "Offered

Shares"), the price per Share proposed to be paid by the proposed transferee

for the Offered Shares (the "Offered Price"), and all other terms and

conditions of the proposed Transfer; (b) provide a legible photocopy of the

written offer, and (c) provide such additional information about the proposed

transferee as the Company or any Remaining Shareholder (defined below) may

reasonably request, which information shall be provided within ten (10) days of

receipt of the request.

 

3.2 OFFER TO SELL. Giving an Offer Notice to the Company

shall constitute an offer by the Transferor on the date the Offer Notice is

received by the Company (the "Offer Date") to sell the Offered Shares to the

Company and/or the other Shareholders (the "Remaining Shareholders") at a

purchase price per Share (the "Purchase Price") equal to the Offered Price and

in the manner provided in Section 3.3. If the Offered Shares are proposed to

be sold for consideration other than solely cash, the Offered Price shall be

deemed to be the sum of (a) the fair market value of the consideration other

than cash offered for the Offered Shares as determined in good faith by the

Board of Directors of the Company, and (b) any cash consideration so offered.

 

3.3 SHARE PURCHASE PROCEDURES. Each purchase of Shares

by the Company and/or the Remaining Shareholders pursuant to this Section 3

shall be made as follows:

 

3.3.1 The Company shall have the first right to purchase

any or all of the Offered Shares. It shall exercise this right by giving

written notice to the Transferor (the "Company Acceptance Notice") within

forty-five (45) days (the "Company Acceptance Period") after the Offer Date,

stating the number of Offered Shares that the Company agrees to purchase.

Delivery of the Company Acceptance Notice to the Transferor shall create a

binding contract between the Company and the Transferor for the purchase and

sale, at the Purchase Price and on the terms and conditions described in

Section 4, of the number of Shares specified in the Company Acceptance Notice.

 

3.3.2 No later than ten (10) days after the expiration of

the Company Acceptance Period, the Company shall provide each of the Remaining

Shareholders with a copy of the Offer Notice and inform them of the number of

Offered Shares the Company has

 

 

 

 

 

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agreed to purchase. If the Company does not exercise its right to purchase all

of the Offered Shares, each of the Remaining Shareholders shall then have the

right to purchase those Offered Shares that the Company has elected not to

purchase (the "Remaining Offered Shares") which are allocated to the

Shareholder pursuant to Section 3.3.4.

 

3.3.3 Within forty-five (45) days after the expiration of

the Company Acceptance Period (the "Shareholder Acceptance Period"), each

Remaining Shareholder desiring to purchase all or part of the Remaining Offered

Shares (an "Accepting Shareholder") shall deliver to the Company notice of his

or her acceptance of the offer (the "Shareholder Acceptance Notice"),

specifying the number of such Shares that he or she agrees to purchase.

Delivery of a Shareholder Acceptance Notice to the Company shall create a

binding contract between the Accepting Shareholder and the Transferor for the

purchase and sale, at the Purchase Price and on the terms and conditions

described in Section 4, of that portion of the Remaining Offered Shares

allocated to such Accepting Shareholder under Section 3.3.4.

 

3.3.4 Each Accepting Shareholder shall first have allocated

to him or her such portion of the Remaining Offered Shares as the number of

Shares of Capital Stock (as defined below) held by such Shareholder bears to

the total number of Shares of Capital Stock held by all of the Accepting

Shareholders (a Shareholder's "Pro Rata Portion"), but limited by the number of

Shares specified in his or her Shareholder Acceptance Notice. If any Accepting

Shareholder agrees to purchase less than his or her Pro Rata Portion of the

Remaining Offered Shares, each Accepting Shareholder who agrees to purchase

more than his or her Pro Rata Portion of the Remaining Offered Shares shall

have allocated to him or her such additional portion of the Remaining Offered

Shares not so allocated under the preceding sentence as the number of Shares of

Capital Stock held by such Accepting Shareholder bears to the total number of

Shares of Capital Stock held by all Accepting Shareholders who agree to

purchase more than their Pro Rata Portion of the Remaining Offered Shares, but

again limited by the number of Shares specified in his or her Shareholder

Acceptance Notice. This procedure shall continue until the Remaining Offered

Shares have been allocated among the Accepting Shareholders to the extent

specified in their respective Shareholder Acceptance Notices. "Shares of

Capital Stock" shall mean the number of shares of common stock held by one or

more Shareholders plus that number of shares of common stock into which any

shares of preferred stock then held by the Shareholder or Shareholders could be

converted at that time under the terms of the Company's Articles of

Incorporation, as amended from time to time.

 

3.3.5 If the Company and the Remaining Shareholders have

not agreed to purchase all of the Offered Shares, the Transferor may effect a

Transfer of any remaining Offered Shares to the proposed transferee at any time

within sixty (60) days after the expiration of the Shareholder Acceptance

Period at the Offered Price and on the terms and conditions stated in the Offer

Notice only, provided that the proposed transferee shall have first executed a

"Consent to Be Bound" by this Agreement in the form of attached Exhibit A.

 

 

 

 

 

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4. TERMS OF SALE AND CLOSING. The Transfer of Offered Shares to

the Company and/or to Accepting Shareholders (collectively, the "Purchasers")

shall be consummated on the terms and conditions set forth in the Offer Notice

on a date set by the Company (the "Closing Date"), which date shall be not less

than fifteen (15) nor more than thirty (30) days after expiration of (a) the

Company Acceptance Period if the Company is purchasing all of the Offered

Shares; or (b) the Shareholder Acceptance Period if the Company and/or the

Remaining Shareholders are purchasing all or a portion of the Offered Shares.

At least fourteen (14) days prior to the Closing Date, the Company shall give

notice to the Transferor and all the Remaining Shareholders, specifying the

number, if any, of the Offered Shares to be purchased by the Company and each

of the Remaining Shareholders and specifying the Closing Date.

 

5. OTHER EVENTS CONSTITUTING AN OFFER TO TRANSFER SHARES.

 

5.1 REPURCHASE EVENTS. Each of the following events or

conditions shall constitute a Repurchase Event:

 

(a) the filing of a petition in bankruptcy by or against

the Shareholder (unless the petition is dismissed within sixty (60) days);

 

(b) any general assignment by the Shareholder for the

benefit of his or her creditors;

 

(c) any decree of divorce, dissolution or separate

maintenance, or any property settlement or separation agreement wherein Shares

are awarded to a Shareholder's former or separated spouse or partner who is not

also a Shareholder (a "Former Spouse");

 

(d) the termination of employment for "cause" of any

Shareholder who is also an employee of the Company; provided, however, that the

Company's board of directors, in its sole discretion, may determine that the

termination of employment for "cause" of any Shareholder who is also an

employee of the Company shall not be considered a Repurchase Event

("employment" shall include full time employment, part time employment, or

service as a consultant, on an advisory board, or on the Company's board of

directors; termination of employment for "cause" shall have the meaning given

that term in any employment agreement or consulting agreement to which the

Shareholder is a party or, in the absence thereof, the conduct that shall

constitute "cause" for purposes of this Agreement shall be insubordination,

dishonesty, incompetence, moral turpitude or the refusal to perform the

individual's duties and responsibilities for any reason other than illness or

incapacity);

 

(e) any Non-complying Transfer (defined in Section 7); or

 

(f) any other event, other than a Transfer pursuant to

Section 2, which, were it not for the provisions of this Agreement, would cause

any such Shares, or any interest therein, to be sold, assigned, awarded,

confirmed or otherwise transferred, for

 

 

 

 

 

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consideration or otherwise, to any person, whether voluntarily, involuntarily

or by operation of law under circumstances that would not bring such event

within Section 3 of this Agreement.

 

5.2 PURCHASE OF SHARES. Upon the occurrence of a

Repurchase Event, as defined in Section 5.1 (except the Repurchase Event

described in Section 5.1(c)), the Company and secondarily the Remaining

Shareholders shall have the right to purchase such Shareholder's Shares on the

same terms and conditions as if such Shareholder had made an offer to sell such

Shares pursuant to Section 3 at a price per Share equal to the Determined Price

established pursuant to Section 6. Upon the occurrence of the Repurchase Event

specified in Section 5.1(c), first that Shareholder whose Former Spouse was

awarded Shares, and then the Company and, after the Company, the Remaining

Shareholders shall have the right to purchase any or all Shares owned, in whole

or in part, by that Shareholder's Former Spouse on the same terms and

conditions as if such Shareholder's Former Spouse made an offer to sell such

Shares pursuant to Section 3 at a price per Share equal to the price per share

at which the Shares were valued for purposes of the Former Spouse's property

settlement or, if no value was ascribed to the Shares for purposes of the

property settlement, the Determined Price established pursuant to Section 6.

 

5.3 OFFER NOTICE; OFFERED PRICE. Within thirty (30) days

after the occurrence of a Repurchase Event, the Shareholder or his or her

trustee in bankruptcy, personal representative, guardian, executor or

administrator, as appropriate (the "Transferor"), shall give written notice to

the Company and the other Shareholders (the "Remaining Shareholders") of such

event specifying the date of such event and describing in reasonable detail the

nature of the event and the number of Shares affected. The price per Share

shall be as specified in the last sentence of Section 5.2 or the Determined

Price established pursuant to Section 6, as appropriate. Such notice shall be

deemed to be the Offer Notice for purposes of Section 3, the number of Shares

affected shall be deemed to be the Offered Shares, and such Determined Price

shall be deemed to be the Offered Price. If the Company or any Remaining

Shareholder has not received this notice upon the expiration of the thirty-

(30-) day period, any Shareholder or director of the Company who has knowledge

of such event may give notice to the Company and the Remaining Shareholders at

any time after the end of such period, and the notice shall be deemed to be the

Offer Notice.

 

5.4 PAYMENT FOR THE SHARES. The Purchase Price for the

Offered Shares for purposes of this Section 5 shall be paid in five (5) equal

annual installments, together with interest on the unpaid balance compounded

semi-annually at a per annum rate equal to the minimum annual rate of interest

necessary to avoid the imputation of interest under federal income tax laws.

The first installment of principal and interest shall be paid on the last day

of the fiscal year in which the Repurchase Event occurred. Interest shall

accrue commencing on the Closing Date as defined in Section 4. The unpaid

balance of the Purchase Price for the Offered Shares may be prepaid in whole or

in part at any time without penalty, and may be accelerated in the event of

failure to pay any installment when due, in which case reasonable attorneys'

fees and costs may also be recovered if any legal action for

 

 

 

 

 

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collection is commenced. The other terms and conditions and procedures for

transferring Offered Shares shall be determined in accordance with Section 4.

 

6. DETERMINED PRICE.

 

The Determined Price for each Share shall be calculated as

follows:

 

6.1 Within sixty (60) days of the Repurchase Event, the

Company and the Transferor shall attempt to agree on the Determined Price.

 

6.2 If the Company and the Transferor are unable to agree

upon the Determined Price within such period, the Determined Price shall equal

the Fair Market Value of the Transferor's Shares (as defined below), as

established by an independent qualified appraiser, divided by the number of

Shares to be transferred. The "Fair Market Value of the Transferor's Shares"

means the cash or cash equivalent price at which those Shares would have

changed hands between a willing buyer and a willing seller on the date of the

Repurchase Event, both being adequately informed of the relevant facts and

neither being compelled to buy or sell (it is the intent of the parties that in

determining the Fair Market Value of the Transferor's Shares, all appropriate

factors will be considered, including, but not limited to, minority discounts

and discounts for lack of marketability).

 

The Company and the Transferor shall attempt to agree upon such an

appraiser, and, if an appraiser is agreed upon in writing by the parties, the

resulting calculation shall be final and binding. The costs of such appraiser

shall be divided evenly between the Company and the Transferor.

 

6.3 If the Company and the Transferor are unable to agree

upon a single appraiser within ninety (90) days of the Repurchase Event, then

either party shall be entitled to notify the other in writing of such party's

institution of the following appraisal procedure:

 

Within ten (10) days of one party's giving notice to the other that he

or she is instituting the appraisal process, each party shall notify the other

in writing of his or her appointed qualified independent appraiser (each, a

"Party Appraiser"), which appraiser must be experienced in the valuation of

closely held corporations and of the type of business engaged in by the

Company. The two appraisers shall select a third qualified independent

appraiser (the "Independent Appraiser") within thirty (30) days of the

appointment of the second Party Appraiser. If the two Party Appraisers cannot

agree on an Independent Appraiser within the thirty (30) day period, the

Independent Appraiser shall be selected pursuant to the American Arbitration

Association's Commercial Arbitration Rules, Sections 13 and 15, as such

sections may be amended or succeeded from time to time. Each Party Appraiser

shall complete and submit to the Independent Appraiser a calculation of the

Determined Price, pursuant to Section 6.1, within sixty (60) days of the

appointment of the first Party Appraiser. The Independent Appraiser shall

select as the Determined Price one of the two calculations of the Determined

Price submitted by the Party Appraisers. The calculation of the Determined

Price selected by the Independent Appraiser shall be final and

 

 

 

 

 

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binding and shall constitute the Determined Price. Each party shall bear the

costs associated with the appraiser he or she selects and shall share equally

the costs of the Independent Appraiser. If either party fails to appoint an

appraiser within the allotted time period, or if either appraiser fails to

complete the calculation within the allotted time period, the calculation of

the appraiser appointed by the other party shall be final and binding and shall

be deemed to constitute the Determined Price.

 

7. EFFECT OF NON-COMPLYING TRANSFER. If any Transfer in violation

of this Agreement shall be attempted, or if any involuntary or other purported

Transfer by law of any Shares occurs or is attempted (each, a "Non-complying

Transfer"), it shall be void and upon presentation for transfer the Company

shall not give effect to such purported Transfer. The failure of the Company

or its Shareholders to purchase, pursuant to Section 5, Shares which are the

subject matter of a Non-complying Transfer shall not be construed as permission

to proceed with such Transfer. In addition, any Shareholder or the Company may

institute and maintain a proceeding to compel specific performance of this

Agreement by the Shareholder attempting such Transfer, it being agreed that the

other Shareholders not in default and the Company do not have an adequate

remedy at law.

 

8. CONFIDENTIALITY.

 

Each Shareholder agrees to hold in strict confidence all information

concerning or related to the Company ("Confidential Information") and shall not

disclose any Confidential Information to third parties unless such Confidential

Information is already generally publicly known through no fault of the

Shareholder.

 

9. SPOUSES.

 

9.1 SPOUSAL CONSENT. The execution of this Agreement by a

Shareholder's spouse who is not also a Shareholder (a "Spouse") signifies that

he or she authorizes, ratifies, confirms and approves the execution of this

Agreement by the Shareholder, and acknowledges that any interest he or she now

owns or hereafter acquires in the Shares, pursuant to community property laws

or otherwise, shall be subject to the terms of this Agreement as if such

interests constituted Shares and as if such Spouse were a Shareholder. He or

she further authorizes and appoints his or her spouse as his or her

attorney-in-fact to exercise all rights he or she may have with respect to the

ownership of any Shares, including the encumbrance and disposition of such

Shares. Except to the extent specifically provided in this Section 9, the

Spouse of a Shareholder shall not be considered a Shareholder.

 

9.2 FUTURE SPOUSES. If a Shareholder marries or remarries

after executing this Agreement, the Shareholder shall have his or her Spouse

execute a "Consent to Be Bound" by this Agreement in the form of attached

Exhibit A within a reasonable time, not to exceed thirty (30) days, following

the marriage.

 

9.3 AGREEMENT DRAFTED BY COUNSEL TO THE COMPANY. Each Spouse,

by signing this Agreement or a "Consent to Be Bound" by this Agreement,

acknowledges that he

 

 

 

 

 

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or she (a) has read and understood this Agreement, and understands the effect

of this Section 9, (b) has had the opportunity to obtain separate and

independent counsel of his or her own choosing prior to signing this Agreement

or a "Consent to Be Bound" by this Agreement and has either exercised or waived

such right, and (c) understands that this Agreement has been drafted by

attorneys for the Company.

 

10. INDEPENDENT COUNSEL. Each Shareholder understands that this

Agreement has been drafted by attorneys for the Company and acknowledges that

he or she has had the opportunity to obtain separate and independent counsel of

his or her own choosing prior to signing this Agreement or a "Consent to Be

Bound" by this Agreement and has either exercised or waived such right.

 

11. MISCELLANEOUS PROVISIONS.

 

11.1 FURTHER ASSURANCES. Each party agrees to perform any

further acts and to execute and deliver any further documents that may be

reasonably necessary to carry out the provisions of this Agreement. The

obligation imposed by this Section 11.1 shall be specifically enforceable.

 

11.2 ATTORNEY'S FEES. In the event it is necessary for

any party to engage an attorney to enforce the terms of this Agreement,

regardless of whether a lawsuit or arbitration is commenced, the prevailing

party shall, in addition to any other relief, be entitled to recover from the

party in default reasonable attorney's fees and costs, including any on appeal.

 

11.3 CONSTRUCTION AND VENUE. It is agreed and understood

that this Agreement is made in accordance with and shall be interpreted under

the laws of the State of Washington. If any action or other proceeding be

brought on or in connection with this Agreement, the venue of said action or

other proceeding shall be in King County, Washington.

 

11.4 NUMBER AND GENDER. Unless some other meaning or

intent is apparent from the context, the plural shall include the singular and

vice versa, and masculine, feminine and neuter words shall be used

interchangeably.

 

11.5 SECTION HEADINGS. Section headings have been

included solely for convenience and shall not be considered a part of this

Agreement for any purpose relating to the interpretation or construction of its

terms.

 

11.6 LEGEND ON SHARES. Upon execution of this Agreement,

Shareholders shall deliver all certificates representing Shares to the Company

to have placed upon them a legend in substantially the following form:

 

The Shares represented by this certificate are subject to the

terms of a Shareholders' Buy-Sell Agreement, as such agreement

may

 

 

 

 

 

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be amended from time to time as provided in the agreement, a

copy of which may be examined at the principal office of the

corporation. All terms and provisions of the Shareholders'

Buy-Sell Agreement are hereby incorporated by reference and made

a part of this certificate.

 

11.7 AMENDMENTS. The provisions of this Agreement may be

altered, amended or repealed, in whole or in part, only upon the written

consent of the Company and the Shareholders holding two-thirds (2/3) of the

outstanding Shares of Capital Stock (as defined in Section 3.3.4).

 

11.8 SUCCESSORS AND ASSIGNS. This Agreement shall be

binding on, and shall inure to the benefit of, the parties to it and their

respective heirs, personal representatives, successors and assigns.

 

11.9 TESTAMENTARY PROVISIONS. Each Shareholder agrees to

insert in his or her will a direction and authorization to the executor to

fulfill and comply with the provisions of this Agreement.

 

11.10 SEVERABILITY. Should any provision or portion of

this Agreement be held unenforceable or invalid for any reason, the remaining

provisions and portions shall be unaffected by such holding.

 

11.11 ENTIRE AGREEMENT. This instrument constitutes the

sole and entire agreement of the parties with respect to its subject matter and

correctly sets forth the rights, duties and obligations of each as to the other

with respect to the subject matter as of its date. Any prior agreements,

promises, negotiations or representations concerning its subject matter not

expressly set forth in this Agreement are of no force or effect.

 

11.12 TERMINATION. This Agreement shall terminate on the

written agreement of the Company and the Shareholders holding two-thirds (2/3)

of the outstanding Shares of Capital Stock (as defined in Section 3.3.4); upon

the dissolution, bankruptcy or insolvency of the Company; or at such time as

only one Shareholder (other than the Founder) remains, after the Shares of all

other Shareholders have been transferred, redeemed or purchased.

 

11.13 NOTICES. Any notice or other communication required

or permitted to be given under this Agreement shall be in writing, and notice

shall be deemed given when delivered personally to, or deposited in the United

States mail, first-class, postage prepaid, addressed to the Company or the

Founder at 616 First Avenue, Suite 701, Seattle, WA 98104, or to the

Shareholder at the Shareholder's address as set forth on attached Exhibit B.

Any party may at any time give notice in writing to the other parties of a

change of his or her address for purposes of this Section 11.13.

 

 

 

 

 

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11.14 COUNTERPARTS. This Agreement may be executed by the

parties in one or more counterparts, all of which taken together shall

constitute one instrument.

 

11.15 CONFIRMATION OF DEFINITION OF SHARES. The parties

expressly acknowledge and confirm that, as noted above, this Agreement binds

only those Shares of Shareholders acquired (a) pursuant to the exercise of

options granted under the Company's 1995 Stock Option Plan, as hereafter

amended, or under any other stock option plan or similar compensation plan

adopted after the date hereof by the Company, or (b) pursuant to a stock bonus,

warrant or other form of security issued or granted for services rendered to

the Company.

 

IN WITNESS WHEREOF, the parties have executed this Shareholders'

Buy-Sell Agreement effective as of the date first written above.

 

 

"COMPANY"

 

PROGRESSIVE NETWORKS, INC.

 

 

 

By /s/ Robert Glaser

-------------------------------------

Robert Glaser, President

 

 

"FOUNDER"

 

 

 

/s/ Robert Glaser

-------------------------------------

Robert Glaser

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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