Unassociated Document


    
      EXHIBIT
        10.2

       

      NAPSTER,
        INC.

      2001
        STOCK PLAN

      DIRECTOR
        RESTRICTED STOCK AWARD AGREEMENT

       

      THIS
        DIRECTOR RESTRICTED STOCK AWARD AGREEMENT
        (this
“Agreement”)
        is
        dated as of [____________,
        200_]
        (the
“Award
        Date”)
        by and
        between Napster, Inc., a Delaware corporation (the “Corporation”),
        and
[______________]
        (the
“Director”).

       

      W
        I T N E S S E T H

       

      WHEREAS,
        pursuant to the Napster, Inc. 2001 Stock Plan, as amended (the “Plan”),
        the
        Corporation hereby grants to the Director, effective as of the date hereof,
        a
        restricted stock award (the “Award”),
        upon
        the terms and conditions set forth herein and in the Plan.

       

      NOW
        THEREFORE,
        in
        consideration of services rendered and to be rendered by the Director, and
        the
        mutual promises made herein and the mutual benefits to be derived therefrom,
        the
        parties agree as follows:

       

      1.  Defined
        Terms.
        Capitalized terms used herein and not otherwise defined herein shall have
        the
        meaning assigned to such terms in the Plan.

       

      2.  Grant.
        Subject
        to the terms of this Agreement, the Corporation hereby grants to the Director
        an
        Award with respect to an aggregate of [________]
        restricted shares of Common Stock of the Corporation (the “Restricted
        Stock”).

       

      3.  Vesting.
        Subject
        to Section 8 below, the Award shall vest, and restrictions (other than those
        set
        forth in Section 16 of the Plan) shall lapse, with respect to 6.25%
        of the
        total number of shares of Restricted Stock (subject to adjustment under
        Section 13 of the Plan) on each three-month anniversary of the Award
        Date.
        If the Award Date is the 29th, 30th or 31st of a month and a three-month
        anniversary of such date is scheduled to occur in a month that does not contain
        29, 30 or 31 days, as applicable, the applicable installment of the Restricted
        Stock shall instead be deemed to vest on the last day of the relevant month.
        The
        Board reserves the right to accelerate the vesting of the Restricted Stock
        in
        such circumstances as it, in its sole discretion, deems appropriate and any
        such
        acceleration shall be effective only when set forth in a written instrument
        executed by an officer of the Corporation. 

       

      4.  Continuance
        of Services.
        The
        vesting schedule requires continued service through each applicable vesting
        date
        as a condition to the vesting of the applicable installment of the Award
        and the
        rights and benefits under this Agreement. Partial service, even if substantial,
        during any vesting period will not entitle the Director to any proportionate
        vesting or avoid or mitigate a termination of rights and benefits upon or
        following a termination of services as provided in Section 8 below or under
        the
        Plan. Nothing contained in this Agreement or the Plan constitutes a continued
        service commitment by the Corporation, confers upon the Director any right
        to
        remain in service to the Corporation or any of its Subsidiaries, interferes
        in
        any way with the right of the Corporation or any of its Subsidiaries at any
        time
        to terminate such services, or affects the right of the Corporation or any
        of
        its Subsidiaries to increase or decrease the Director’s other compensation or
        benefits. Nothing in this paragraph, however, is intended to adversely affect
        any independent contractual right of the Director without his or her consent
        thereto.

       

      
        
          
          

        

        
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      5.  Dividend
        and Voting Rights.
        After
        the Award Date, the Director shall be entitled to cash dividends and voting
        rights with respect to the shares of Restricted Stock subject to the Award
        even
        though such shares are not vested, provided that such rights shall terminate
        immediately as to any shares of Restricted Stock that are forfeited pursuant
        to
        Section 8 below.

       

      6.  Restrictions
        on Transfer.
        Prior
        to the time that they have become vested pursuant to Section 3 hereof or
        Section 20(g)(iii) of the Plan, neither the Restricted Stock, nor
        any
        interest therein, amount payable in respect thereof, or Restricted Property
        (as
        defined in Section 9 hereof) may be sold, assigned, transferred, pledged
        or
        otherwise disposed of, alienated or encumbered, either voluntarily or
        involuntarily. The transfer restrictions in the preceding sentence shall
        not
        apply to transfers to the Corporation.

       

      7.  Stock
        Certificates.

       

      (a)  Book
        Entry Form.
        The
        Corporation shall issue the shares of Restricted Stock subject to the Award
        either: (a) in certificate form as provided in Section 7(b) below; or (b)
        in
        book entry form, registered in the name of the Director with notations regarding
        the applicable restrictions on transfer imposed under this
        Agreement.

       

      (b)  Certificates
        to be Held by Corporation; Legend.
        Any
        certificates representing shares of Restricted Stock that may be delivered
        to
        the Director by the Corporation prior to vesting shall be redelivered to
        the
        Corporation to be held by the Corporation until the restrictions on such
        shares
        shall have lapsed and the shares shall thereby have become vested or the
        shares
        represented thereby have been forfeited hereunder. Such certificates shall
        bear
        the following legend and any other legends the Corporation may determine
        to be
        necessary or advisable to comply with all applicable laws, rules, and
        regulations:

       

      “The
        ownership of this certificate and the shares of stock evidenced hereby and
        any
        interest therein are subject to substantial restrictions on transfer under
        an
        Agreement entered into between the registered owner and Napster, Inc. A copy
        of
        such Agreement is on file in the office of the Secretary of Napster,
        Inc.”

       

      (c)  Delivery
        of Certificates Upon Vesting.
        Promptly after the vesting of any shares of Restricted Stock pursuant to
        Section
        3 hereof or Section 20(g)(iii) of the Plan, the Corporation shall, as
        applicable, either remove the notations on any shares of Restricted Stock
        issued
        in book entry form which have vested or deliver to the Director a certificate
        or
        certificates evidencing the number of shares of Restricted Stock which have
        vested (or, in either case, such lesser number of shares as may be permitted
        pursuant to Section 10 hereof. The Director (or the beneficiary or personal
        representative of the Director in the event of the Director’s death or
        disability, as the case may be) shall deliver to the Corporation any
        representations or other documents or assurances as the Corporation or its
        counsel may determine to be necessary or advisable in order to ensure compliance
        with all applicable laws, rules, and regulations with respect to the grant
        of
        the Award and the delivery of shares of Common Stock in respect thereof.
        The
        shares so delivered shall no longer be restricted shares hereunder.

       

      
        
          
          

        

        
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      (d)  Stock
        Power; Power of Attorney.
        Concurrently with the execution and delivery of this Agreement, the Director
        shall deliver to the Corporation an executed stock power in the form attached
        hereto as Exhibit
        A,
        in
        blank, with respect to such shares. The Corporation shall not deliver any
        share
        certificates in accordance with this Agreement unless and until the Corporation
        shall have received such stock power executed by the Director. The Director,
        by
        acceptance of the Award, shall be deemed to appoint, and does so appoint
        by
        execution of this Agreement, the Corporation and each of its authorized
        representatives as the Director’s attorney(s)-in-fact to effect any transfer of
        unvested forfeited shares (or shares otherwise reacquired by the Corporation
        hereunder) to the Corporation as may be required pursuant to the Plan or
        this
        Agreement and to execute such documents as the Corporation or such
        representatives deem necessary or advisable in connection with any such
        transfer.

       

      8.  Effect
        of Termination of Employment or Services.
        If
        the
        Director ceases to be a member of the Board (regardless of the reason, whether
        with or without cause, voluntarily or involuntarily, or due to death or
        disability), the Director’s shares of Restricted Stock (and related Restricted
        Property as defined in Section 9 hereof) shall be forfeited to the Corporation
        to the extent such shares have not become vested pursuant to Section 3 hereof
        or
        Section 20(g)(iii) of the Plan upon the Severance Date (as defined below).
        Upon
        the occurrence of any forfeiture of shares of Restricted Stock hereunder,
        such
        unvested, forfeited shares and related Restricted Property shall be
        automatically transferred to the Corporation as of the Severance Date, without
        any other action by the Director (or the Director’s beneficiary or personal
        representative in the event of the Director’s death or disability, as
        applicable). No consideration shall be paid by the Corporation with respect
        to
        such transfer. The Corporation may exercise its powers under Section 7(d)
        hereof
        and take any other action necessary or advisable to evidence such transfer.
        The
        Director (or the Director’s beneficiary or personal representative in the event
        of the Director’s death or disability, as applicable) shall deliver any
        additional documents of transfer that the Corporation may request to confirm
        the
        transfer of such unvested, forfeited shares and related Restricted Property
        to
        the Corporation. Notwithstanding anything to the contrary in this Section
        8, the
        Director’s “Severance
        Date”
        shall
        be the last day that the Director is a member of the Board; provided, however,
        that if the Director ceases to be a member of the Board (regardless of the
        reason) but, immediately thereafter, is employed by the Corporation or one
        of
        its Subsidiaries, the Director’s Severance Date shall not be the date the
        Director ceases to be a member of the Board but instead shall be the last
        day
        that the Director is either or both (1) a member of the Board and/or (2)
        employed by the Corporation or a Subsidiary. 

       

      9.  Adjustments
        Upon Specified Events.
        Upon
        the occurrence of certain events relating to the Corporation’s stock
        contemplated by Section 13(a) of the Plan, the Administrator shall make
        adjustments if appropriate in the number and kind of securities that may
        become
        vested under the Award. If any adjustment shall be made under Section 13(a)
        of
        the Plan or an event described in Section 13(f)(i) of the Plan shall occur
        and
        the shares of Restricted Stock are not fully vested upon such event or prior
        thereto, the restrictions applicable to such shares of Restricted Stock shall
        continue in effect with respect to any consideration, property or other
        securities (the “Restricted
        Property”
        and,
        for the purposes of this Agreement, “Restricted Stock” shall include “Restricted
        Property”, unless the context otherwise requires) received in respect of such
        Restricted Stock. Such Restricted Property shall vest at such times and in
        such
        proportion as the shares of Restricted Stock to which the Restricted Property
        is
        attributable vest, or would have vested pursuant to the terms hereof if such
        shares of Restricted Stock had remained outstanding. To the extent that the
        Restricted Property includes any cash (other than regular cash dividends),
        such
        cash shall be invested, pursuant to policies established by the Administrator,
        in interest bearing, FDIC-insured (subject to applicable insurance limits)
        deposits of a depository institution selected by the Administrator, the earnings
        on which shall be added to and become a part of the Restricted
        Property.

       

      
        
          
          

        

        
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      10.  Tax
        Withholding.
        The
        Corporation shall reasonably determine the amount of any federal, state,
        local
        or other income, employment, or other taxes which the Corporation or any
        of its
        Subsidiaries may reasonably be obligated to withhold with respect to the
        grant,
        vesting, making of an election under Section 83(b) of the Code or other event
        with respect to the Restricted Stock. The Corporation shall, to the extent
        the
        Corporation reasonably determines is permitted by all Applicable Laws, withhold
        and/or reacquire a sufficient number of shares of Restricted Stock that vest
        pursuant to this Agreement, valued at their Fair Market Value on the applicable
        vesting date, to satisfy the minimum amount of any such withholding obligations
        that arise with respect to the vesting of such shares. The Corporation may
        take
        such action(s) without notice to the Director and shall remit to the Director
        in
        cash the balance of any proceeds from withholding and/or reacquiring such
        shares
        in excess of the amount reasonably determined to be necessary to satisfy
        such
        withholding obligations. The Director shall have no discretion as to the
        Corporation’s satisfaction of tax withholding obligations in such manner. If,
        however, the Director makes an election under Section 83(b) of the Code with
        respect to the Restricted Stock, if any other withholding event occurs with
        respect to the Restricted Stock other than the vesting of such shares, or
        if the
        Corporation is otherwise reasonably not able to satisfy the withholding
        obligations with respect to the vesting of the Restricted Stock as provided
        above in this Section 10, the Corporation (or any Subsidiary of the Corporation
        that employs the Director, as applicable) shall be entitled to require a
        cash
        payment by or on behalf of the Director and/or to deduct from other compensation
        payable to the Director the amount of any such withholding
        obligations.

       

      11.  Notices.
        Any
        notice to be given under the terms of this Agreement shall be in writing
        and
        addressed to the Corporation at its principal office to the attention of
        the
        Secretary, and to the Director at the Director’s last address reflected on the
        Corporation’s payroll records. Any notice shall be delivered in person or shall
        be enclosed in a properly sealed envelope, addressed as aforesaid, registered
        or
        certified, and deposited (postage and registry or certification fee prepaid)
        in
        a post office or branch post office regularly maintained by the United States
        Government. Any such notice shall be given only when received, but if the
        Director is no longer a Service Provider, shall be deemed to have been duly
        given five business days after the date mailed in accordance with the foregoing
        provisions of this Section 11.

       

      12.  Plan.
        The
        Award and all rights of the Director under this Agreement are subject to
        the
        terms and conditions of the provisions of the Plan, incorporated herein by
        reference. The Director agrees to be bound by the terms of the Plan and this
        Agreement. The Director acknowledges having read and understanding the Plan,
        the
        Prospectus for the Plan, and this Agreement. Unless otherwise expressly provided
        in other sections of this Agreement, provisions of the Plan that confer
        discretionary authority on the Board or the Administrator do not (and shall
        not
        be deemed to) create any rights in the Director unless such rights are expressly
        set forth herein or are otherwise in the sole discretion of the Board or
        the
        Administrator so conferred by appropriate action of the Board or the
        Administrator under the Plan after
        the date
        hereof.

       

      
        
          
          

        

        
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      13.  Entire
        Agreement.
        This
        Agreement and the Plan together constitute the entire agreement and supersede
        all prior understandings and agreements, written or oral, of the parties
        hereto
        with respect to the subject matter hereof. The Plan may be amended pursuant
        to
        Section 15 of the Plan. This Agreement may be amended by the Board
        from
        time to time. Any such amendment must be in writing and signed by the
        Corporation. Any such amendment that materially and adversely affects the
        Director’s rights under this Agreement requires the consent of the Director in
        order to be effective with respect to the Award. The Corporation may, however,
        unilaterally waive any provision hereof in writing to the extent such waiver
        does not adversely affect the interests of the Director hereunder, but no
        such
        waiver shall operate as or be construed to be a subsequent waiver of the
        same
        provision or a waiver of any other provision hereof.

       

      14.  Counterparts.
        This
        Agreement may be executed simultaneously in any number of counterparts, each
        of
        which shall be deemed an original but all of which together shall constitute
        one
        and the same instrument. 

       

      15.  Section
        Headings.
        The
        section headings of this Agreement are for convenience of reference only
        and
        shall not be deemed to alter or affect any provision hereof.

       

      16.  Governing
        Law.
        This
        Agreement shall be governed by and construed and enforced in accordance with
        the
        laws of the State of Delaware without regard to conflict of law principles
        thereunder.

       

      IN
        WITNESS WHEREOF,
        the
        Corporation has caused this Agreement to be executed on its behalf by a duly
        authorized officer and the Director has hereunto set his or her hand as of
        the
        date and year first above written.

       

      NAPSTER,
        INC.,

      a
        Delaware corporation

       

       

      By:

      
        
          

        

      

      Print
        Name:

      Its:

       

       

      DIRECTOR

       

      
        
          

        

      

      Signature

       

      
        
          

        

      

      Print
        Name

       


      
        
          
          

        

        
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      CONSENT
        OF SPOUSE

       

      In
        consideration of the execution of the foregoing Director Restricted Stock
        Award
        Agreement by Napster, Inc., I, _____________________________, the spouse
        of the
        Director therein named, do hereby join with my spouse in executing the foregoing
        Director Restricted Stock Award Agreement and do hereby agree to be bound
        by all
        of the terms and provisions thereof and of the Plan.

       

      Dated: _____________,
        2005

       

      
        
          

        

      

      Signature
        of Spouse

       

      
        
          

        

      

      Print
        Name

      



      
        
          
          

        

        
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      EXHIBIT
        A

       

      


      STOCK
        POWER

       

      


      FOR
        VALUE
        RECEIVED and pursuant to that certain Director Restricted Stock Award Agreement
        between Napster, Inc., a Delaware corporation (the “Corporation”), and the
        individual named below (the “Individual”) dated as of _____________, 2005, the
        Individual, hereby sells, assigns and transfers to the Corporation, an aggregate
        ________ shares of Common Stock of the Corporation, standing in the Individual’s
        name on the books of the Corporation and represented by stock certificate
        number(s) _____________________________________________ to which this instrument
        is attached, and hereby irrevocably constitutes and appoints _________________
        ____________________________________ as his or her attorney in fact and agent
        to
        transfer such shares on the books of the Corporation, with full power of
        substitution in the premises.

       

      Dated
        _____________, ________

       

      
        
          

        

      

      Signature

       

      
        
          

        

      

      Print
        Name

       

      (Instruction:
        Please do not fill in any blanks other than the signature line. The purpose
        of
        the assignment is to enable the Corporation to exercise its sale/purchase
        option
        set forth in the Director Restricted Stock Award Agreement without requiring
        additional signatures on the part of the Individual.)

       

       

      
        
          
          

        

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