**Exhibit 10.52
 

 

 

STOCK PURCHASE AGREEMENT

By and Between

NETCALENDAR, INC.

and

POPMAIL.COM, INC.

______________________________

August __, 2000

______________________________

 

 

 

 
**STOCK PURCHASE AGREEMENT**
This Stock Purchase Agreement (the "Agreement") is entered into as ofAugust 8, 2000 (the "Effective Date") by and between NetCalendar, Inc., acorporation organized under the laws of the State of Delaware (hereinafter"NetCalendar"), and PopMail.com, inc., a Minnesota corporation("PopMail").
**W I T N E S S E T H:

WHEREAS, PopMail desires to purchase 27,624 shares of NetCalendar commonstock, par value $0.01 per share (the "Shares") and NetCalendar is willing tosell the Shares to PopMail pursuant to the terms, and subject to the conditionsset forth hereinafter.
**NOW, THEREFORE, in consideration of the foregoing and for other goodand valuable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties agree as follows:
**A G R E E M E N T:

PURCHASE AND SALE OF STOCK
Purchase and Sale
.  Pursuant to the terms, and subject to theconditions set forth herein, NetCalendar shall issue and sell the Shares toPopMail, and PopMail shall purchase the Shares from NetCalendar for the price of$1,000,000 (the "Purchase Price") payable in the manner specified in Section1.2.
Payment of the Purchase Price
. The Purchase Price shall be paid inshares of PopMail common stock, $.01 par value, ("Purchase Price Shares")delivered to NetCalendar at the closing (the "Closing") of the purchasetransaction contemplated herein selected by mutual agreement of the parties, butnot later than August 26, 2000 (the "Initial Closing Date").  For purposes ofthis Section 1.2, the Purchase Price Shares shall be valued at the averageclosing share price of PopMail common stock for the ten consecutive trading dayspreceding the second business day prior to the Initial Closing Date (the"Initial Closing Share Price"); 
provided
, 
however
, that PopMailshall not be obligated to issue shares of its common stock at an effective pershare price of less than $.50.  If the average closing share price of PopMailcommon stock for the ten consecutive trading days preceding the second businessday prior to the Initial Closing Date is less than $.50, PopMail shall offer toNetCalendar Purchase Price Shares at an effective per share price of $.50 andNetCalendar shall have the option to accept such offer (in which event theInitial Closing Share Price shall be $.50) or to reject such offer and terminatethis Agreement pursuant to Section 6.1.
The Closing
.  The Closing shall take place at the offices of MaslonEdelman Borman & Brand, LLP, 3300 Wells Fargo Center, Minneapolis, MN 55402.At the Closing, NetCalendar shall deliver to PopMail a certificate representingthe Shares in a form reasonably satisfactory to PopMail and its counsel and dulyexecuted by authorized officers of NetCalendar. At the Closing, PopMail shalldeliver to NetCalendar certificates representing the Purchase Price Shares in aform reasonably satisfactory to NetCalendar and its counsel and duly executed byauthorized officers of PopMail. 
Supplemental Closing
.  During the seven (7) business day periodcommencing on the 435th day following the Initial Closing Date, NetCalendarshall make the following determinations:  (a) the average per share sellingprice (the "Average Selling Price") of all Purchase Price Shares, if any, soldby NetCalendar during the 15-month period beginning upon the Initial ClosingDate pursuant to the provisions of Section 5.2 hereof, and (b) the number ofPurchase Price Shares, if any, which NetCalendar offered for sale at any timepursuant to the provisions of Section 5.2 hereof, but was not able to sell dueto lack of a buyer during the applicable period (the "Unsold Purchase PriceShares").  NetCalendar shall provide to PopMail written notice of each suchdetermination in reasonable detail, which notice shall include a certificatecontaining any Unsold Purchase Price Shares (the "Lookback Notice").  If theAverage Selling Price of Purchase Price Shares sold by NetCalendar during suchperiod is less than the Initial Closing Share Price of such shares, NetCalendarshall have the right to receive additional cash or, at PopMail's option, sharesof PopMail common stock ("Supplemental Purchase Price Shares") equal in value tothe amount by which the Initial Closing Share Price exceeds the Average SellingPrice, multiplied by the number of Purchase Price Shares sold by NetCalendarduring such 15-month period (such amount constituting the "Supplemental PurchasePrice").  In addition to the Supplemental Purchase Price, to the extentNetCalendar has returned any Unsold Purchase Price Shares with the LookbackNotice, NetCalendar shall have the right to receive, in exchange therefor, suchnumber of NetCalendar Shares as provided  below.  On the 10th business dayfollowing the date of the Lookback Notice delivered in accordance herewith(the"Supplemental Closing Date"), PopMail shall deliver to NetCalendar (a) eithercash or one or more certificates executed by duly authorized officers of PopMailrepresenting Supplemental Purchase Price Shares equal in value to theSupplemental Purchase Price, and (b) such number of Shares as shall have beenpurchased by PopMail with the Unsold Purchase Price Shares as of the InitialClosing Date.  For purposes of this Section 1.4, the value of the SupplementalPurchase Price Shares shall be equal to the average closing share price ofPopMail common stock for the ten consecutive trading days preceding the secondbusiness day prior to the Supplemental Closing Date.  In the event that theSupplemental Registration Statement is not declared effective by the Securitiesand Exchange Commission (the "SEC") on or before the Supplemental RegistrationDue Date, or is not maintained effective throughout the SupplementalRegistration Period, pursuant to the provisions of Section 5.3 hereof,NetCalendar shall be entitled to return to PopMail certificates representingsuch number of Supplemental Purchase Price Shares as shall then be held byNetCalendar (such shares representing the "Unrealized Supplemental PurchasePrice") and PopMail shall, within five (5) days following receipt of same,either pay to NetCalendar the Unrealized Supplemental Purchase Price in cash orreturn to NetCalendar that number of Shares as shall have been equivalent invalue to the Unrealized Supplemental Purchase Price as of the Initial ClosingDate.
**REPRESENTATIONS AND WARRANTIES
Representations and Warranties of NetCalendar
.  NetCalendarhereby represents and warrants to PopMail as of the date hereof as follows:
Organization and Qualification
.  NetCalendar is a corporation,validly existing and in good standing under the laws of the State of Delaware,with the requisite corporate power and authority to own and use its propertiesand assets and to carry on its business as currently conducted.  NetCalendar isduly qualified to do business and is in good standing as a foreign corporationin each jurisdiction in which the nature of the business conducted or propertyowned by it makes such qualification necessary, except where the failure to beso qualified or in good standing, as the case may be, could not, individually orin the aggregate, (x) adversely affect the legality, validity or enforceabilityof the Shares or this Agreement, (y) have a material adverse effect on theresults of operations, assets, or financial condition of NetCalendar, or (z)adversely impair NetCalendar's ability to perform fully on a timely basis itsmaterial obligations under this Agreement (a "Material Adverse Effect").
Authorization; Enforcement
.  NetCalendar has the requisite corporatepower and authority to enter into and to consummate the transactionscontemplated by this Agreement and to otherwise carry out its obligationsthereunder. The execution and delivery of this Agreement by NetCalendar and theconsummation by it of the transactions contemplated hereby have been dulyauthorized by all necessary action on the part of NetCalendar. This Agreementhas been duly executed by NetCalendar and when delivered in accordance with theterms hereof shall constitute the legal, valid and binding obligation ofNetCalendar enforceable against NetCalendar in accordance with its terms, exceptas such enforceability may be limited by applicable bankruptcy, insolvency,reorganization, moratorium, liquidation or similar laws relating to, oraffecting generally the enforcement of, creditors' rights and remedies or byother equitable principles of general application.  NetCalendar is not inviolation of any provision of its certificate of incorporation, bylaws or othercharter documents.
Capitalization
.  The authorized, issued and outstanding capital stockof NetCalendar is set forth in Schedule 2.1(c).  The only shares of currentlyissued and outstanding NetCalendar capital stock (including shares of commonstock) entitled to preemptive or similar rights are shares of Series A, B and CConvertible Preferred Stock. Except as disclosed in Schedule 2.1(c), there areno outstanding options, warrants, script rights to subscribe to, calls orcommitments of any character whatsoever relating to, or, securities, rights orobligations convertible into or exchangeable for, or giving any person any rightto subscribe for or acquire any shares of common stock, or contracts,commitments, understandings, or arrangements by which NetCalendar is or maybecome bound to issue additional shares of common stock, or securities or rightsconvertible or exchangeable into shares of common stock. 
Issuance of the Shares
.  The Shares are duly authorized, and, whenissued against payment as contemplated by this Agreement, shall be validlyissued.
No Conflicts
.  The execution, delivery and performance of thisAgreement by NetCalendar and the consummation by NetCalendar of the transactionscontemplated hereby do not and will not (i) conflict with or violate anyprovision of its certificate of incorporation, bylaws or other charter documents(each as amended through the date hereof), (ii) conflict with, or constitute adefault (or an event which with notice or lapse of time or both would become adefault) under, or give to others any rights of termination, amendment,acceleration or cancellation of, any agreement, indenture or instrument(evidencing a NetCalendar debt or otherwise) to which NetCalendar is a party orby which any property or asset of NetCalendar is bound or affected, or (iii)result in a violation of any law, rule, regulation, order, judgment, injunction,decree or other restriction of any court or governmental authority to whichNetCalendar is subject (including federal and state securities laws andregulations), or by which any property or asset of NetCalendar is bound oraffected, except in the case of each of clauses (ii) and (iii), as could not,individually or in the aggregate, have or result in a Material Adverse Effect.The business of NetCalendar is not being conducted in violation of any law,ordinance or regulation of any governmental authority, except for violationswhich, individually or in the aggregate, could not have or result in a MaterialAdverse Effect.
Consents and Approvals
.  NetCalendar is not required to obtain anyconsent, waiver, authorization or order of, or make any filing or registrationwith, any court or other federal, state, local, foreign or other governmentalauthority or other Person (defined below) in connection with the execution,delivery and performance by NetCalendar of this Agreement other than where thefailure to obtain such consent, waiver, authorization or order, or to give ormake such notice or filing, could not have or result in, individually or in theaggregate, a Material Adverse Effect.  NetCalendar shall deliver to PopMail theShares in the manner contemplated hereby free and clear of all liens andencumbrances of any nature whatsoever. A "Person" means an individual orcorporation, partnership, trust, incorporated or unincorporated association,joint venture, limited liability company, joint stock company, government (or anagency or subdivision thereof) or other entity of any kind.
Litigation; Proceedings
.  Except as specifically disclosed inSchedule 2.1(g), there is no action, suit, notice of violation, proceeding orinvestigation pending or, to the knowledge of NetCalendar, threatened against oraffecting NetCalendar or any of its properties before or by any court,governmental or administrative agency or regulatory authority (federal, state,county, local or foreign) which (i) adversely affects or challenges thelegality, validity or enforceability of this Agreement or the Shares or (ii)could, individually or in the aggregate, have or result in a Material AdverseEffect.
No Default or Violation
.  NetCalendar (i) is not in default under orin violation of (and has not received notice of a claim that it is in defaultunder or that it is in violation of) any indenture, loan or credit agreement orany other agreement or instrument to which it is a party or by which it or anyof its properties is bound, (ii) is not in violation of any order of any court,arbitrator or governmental body, or (iii) is not in violation of any statute,rule or regulation of any governmental authority, except as could notindividually or in the aggregate, have or result in, a Material AdverseEffect.
Private Offering
.  Assuming the accuracy of the representations andwarranties of PopMail set forth in Sections 2.2(h), (i) and (j), the offer,issuance and sale of the Shares to PopMail as contemplated hereby are exemptfrom the registration requirements of the Securities Act of 1933, as amended(the "Securities Act").
Investment Intent
.  NetCalendar is acquiring the Purchase PriceShares, and may acquire the Supplemental Purchase Price Shares, forNetCalendar's own account for investment purposes only and not with a view to orfor distributing or reselling such securities except pursuant to a registrationstatement then effective under the Securities Act.
Access to Information
. NetCalendar acknowledges that NetCalendar hasbeen afforded (i) the opportunity to ask such questions as NetCalendar hasdeemed necessary of, and to receive answers from, representatives of PopMailconcerning the merits and risks of investing in the Purchase Price Shares andthe Supplemental Purchase Price Shares; (ii) access to information about PopMailand PopMail's financial condition, results of operations, business, properties,management and prospects sufficient to enable NetCalendar to evaluateNetCalendar's investment; and (iii) the opportunity to obtain such additionalinformation which PopMail possesses or can acquire without unreasonable effortor expense that is necessary to make an informed investment decision.
Reliance
. NetCalendar understands and acknowledges that (i) thePurchase Price Shares and the Supplemental Purchase Price Shares are beingissued to NetCalendar without registration under the Securities Act in a privateplacement that is exempt from the registration provisions of the Securities Actand (ii) the availability of such exemption, depends in part on, and PopMailwill rely upon the accuracy and truthfulness of, the foregoing representationsand NetCalendar hereby consents to such reliance.
Representations and Warranties of PopMail
.  PopMail hereby representsand warrants to NetCalendar as of the date hereof as follows:
Organization and Qualification
.  PopMail is a corporation, validlyexisting and in good standing under the laws of the State of Minnesota, with therequisite corporate power and authority to own and use its properties and assetsand to carry on its business as currently conducted.  PopMail is duly qualifiedto do business and is in good standing as a foreign corporation in eachjurisdiction in which the nature of the business conducted or property owned byit makes such qualification necessary, except where the failure to be soqualified or in good standing, as the case may be, could not, individually or inthe aggregate, (x) adversely affect the legality, validity or enforceability ofthe Purchase Price Shares, the Supplemental Purchase Price Shares or thisAgreement, (y) have a material adverse effect on the results of operations,assets, or financial condition of PopMail, or (z) adversely impair PopMail'sability to perform fully on a timely basis its material obligations under thisAgreement (a "Material Adverse Effect").
Authorization; Enforcement
.  PopMail has the requisite corporatepower and authority to enter into and to consummate the transactionscontemplated by this Agreement and to otherwise carry out its obligationsthereunder. The execution and delivery of this Agreement by PopMail and theconsummation by it of the transactions contemplated hereby have been dulyauthorized by all necessary action on the part of PopMail. This Agreement hasbeen duly executed by PopMail and when delivered in accordance with the termshereof shall constitute the legal, valid and binding obligation of PopMailenforceable against PopMail in accordance with its terms, except as suchenforceability may be limited by applicable bankruptcy, insolvency,reorganization, moratorium, liquidation or similar laws relating to, oraffecting generally the enforcement of, creditors' rights and remedies or byother equitable principles of general application.  PopMail is not in violationof any provision of its articles of incorporation, bylaws or other charterdocuments.
Issuance of the Purchase Price Shares and the Supplemental Purchase PriceShares
.  The Purchase Price Shares and the Supplemental Purchase PriceShares are duly authorized, and, when issued against payment as contemplated bythis Agreement, shall be validly issued.
No Conflicts
.  The execution, delivery and performance of thisAgreement by PopMail and the consummation by PopMail of the transactionscontemplated hereby do not and will not (i) conflict with or violate anyprovision of its articles of incorporation, bylaws or other charter documents(each as amended through the date hereof), (ii) conflict with, or constitute adefault (or an event which with notice or lapse of time or both would become adefault) under, or give to others any rights of termination, amendment,acceleration or cancellation of, any agreement, indenture or instrument(evidencing a PopMail debt or otherwise) to which PopMail is a party or by whichany property or asset of PopMail is bound or affected, or (iii) result in aviolation of any law, rule, regulation, order, judgment, injunction, decree orother restriction of any court or governmental authority to which PopMail issubject (including federal and state securities laws and regulations), or bywhich any property or asset of PopMail is bound or affected, except in the caseof each of clauses (ii) and (iii), as could not, individually or in theaggregate, have or result in a Material Adverse Effect.  The business of PopMailis not being conducted in violation of any law, ordinance or regulation of anygovernmental authority, except for violations which, individually or in theaggregate, could not have or result in a Material Adverse Effect.
Consents and Approvals
.  PopMail is not required to obtain anyconsent, waiver, authorization or order of, or make any filing or registrationwith, any court or other federal, state, local, foreign or other governmentalauthority or other Person (defined below) in connection with the execution,delivery and performance by PopMail of this Agreement other than where thefailure to obtain such consent, waiver, authorization or order, or to give ormake such notice or filing, could not have or result in, individually or in theaggregate, a Material Adverse Effect.  PopMail shall deliver to PopMail thePurchase Price Shares and, if applicable, the Supplemental Purchase Price Sharesin the manner contemplated hereby free and clear of all liens and encumbrancesof any nature whatsoever. A "Person" means an individual or corporation,partnership, trust, incorporated or unincorporated association, joint venture,limited liability company, joint stock company, government (or an agency orsubdivision thereof) or other entity of any kind.
Litigation; Proceedings
.  Except as specifically disclosed inSchedule 2.2(f), there is no action, suit, notice of violation, proceeding orinvestigation pending or, to the knowledge of PopMail, threatened against oraffecting PopMail or any of its properties before or by any court, governmentalor administrative agency or regulatory authority (federal, state, county, localor foreign) which (i) adversely affects or challenges the legality, validity orenforceability of this Agreement or the Purchase Price Shares or theSupplemental Purchase Price Shares or (ii) could, individually or in theaggregate, have or result in a Material Adverse Effect.
Private Offering
.  Assuming the accuracy of the representations andwarranties of NetCalendar set forth in Sections 2.1(j), (k) and (l), the offer,issuance and sale of the Purchase Price Shares and the Supplemental PurchasePrice Shares to NetCalendar as contemplated hereby are exempt from theregistration requirements of the Securities Act of 1933, as amended (the"Securities Act").
Investment Intent
.  PopMail is acquiring the Shares for PopMail's ownaccount for investment purposes only and not with a view to or for distributingor reselling such securities.
Access to Information
. PopMail acknowledges that PopMail has beenafforded (i) the opportunity to ask such questions as PopMail has deemednecessary of, and to receive answers from, representatives of NetCalendarconcerning the merits and risks of investing in the Shares; (ii) access toinformation about NetCalendar and NetCalendar's financial condition, results ofoperations, business, properties, management and prospects sufficient to enablePopMail to evaluate PopMail's investment; and (iii) the opportunity to obtainsuch additional information which PopMail possesses or can acquire withoutunreasonable effort or expense that is necessary to make an informed investmentdecision.
Reliance
. PopMail understands and acknowledges that (i) the Sharesare being issued to PopMail without registration under the Securities Act in aprivate placement that is exempt from the registration provisions of theSecurities Act and (ii) the availability of such exemption, depends in part on,and NetCalendar will rely upon the accuracy and truthfulness of, the foregoingrepresentations and PopMail hereby consents to such reliance.
**INDEMNIFICATION
Survival of Representations and Warranties
. Notwithstanding anyinvestigation made by or on behalf of any of the parties hereto or the resultsof any such investigation and notwithstanding the participation of such party inthe Closing, the representations and warranties contained in Article 2hereof shall survive the Closing, provided that claims based upon any allegedbreach of a representation or warranty contained in Sections 2.1(g) or 2.2(f)may be brought at any time on or prior to the expiration of any relevant statuteof limitations governing the underlying claim.
Indemnification of PopMail
.  NetCalendar agrees to indemnify and holdharmless PopMail, and each of PopMail's subsidiaries, and their respectiveofficers, directors, employees, agents, affiliates and shareholders against andin respect of: (i) any and all losses, damages or deficiencies (whether as aresult of a direct claim by PopMail against NetCalendar, a third party claimagainst PopMail or otherwise) resulting to PopMail from any and all breaches ofrepresentations, warranties, covenants or other terms of this Agreement byNetCalendar made or contained in this Agreement or in any certification, list,document, exhibit or schedule delivered to PopMail under or in connection withthis Agreement or the transactions contemplated herein; and (ii) all costs andexpenses incident to any and all actions, suits, proceedings, claims, demands,assessments, settlements or judgments in respect of  the foregoing, regardlessof the merit thereof, including PopMail's reasonable legal and accounting feesand expenses (whether incident to the foregoing or to PopMail's enforcement ofsaid rights of defense and indemnity) (items (i) and(ii) above shall be referredto herein collectively as "PopMail's Damages").
Procedure for Indemnification of PopMail
.  If any action, suit orproceeding shall be commenced against PopMail or any claim, demand or assessmentbe asserted against PopMail in respect of which PopMail proposes to demandindemnification, PopMail shall notify NetCalendar to that effect with reasonablepromptness. PopMail will have the right to cause NetCalendar to assume theentire control of the defense, compromise or settlement thereof, including, atthe expense of NetCalendar, employment of counsel satisfactory to PopMail and,in connection therewith, PopMail shall cooperate fully to make available toNetCalendar all pertinent information under its control.  With respect to anyaction, suit, proceeding claim, demand or assessment made against PopMail as towhich PopMail does not cause NetCalendar to assume control of the defensethereof, NetCalendar shall thereafter reimburse PopMail for all of PopMail'sDamages, as and when they are incurred.
Indemnification of NetCalendar
.  PopMail agrees to indemnify and holdharmless NetCalendar, and each of NetCalendar's subsidiaries, and theirrespective officers, directors, employees, agents, affiliates and stockholdersagainst and in respect of: (i) any and all losses, damages or deficiencies(whether as a result of a direct claim by NetCalendar against PopMail, a thirdparty claim against NetCalendar or otherwise) resulting to NetCalendar from anyand all breaches of representations, warranties, covenants or other terms ofthis Agreement by PopMail made or contained in this Agreement or in anycertification, list, document, exhibit or schedule delivered to NetCalendarunder or in connection with this Agreement or the transactions contemplatedherein; and (ii) all costs and expenses incident to any and all actions, suits,proceedings, claims, demands, assessments, settlements or judgments in respectof  the foregoing, regardless of the merit thereof, including NetCalendar'sreasonable legal and accounting fees and expenses (whether incident to theforegoing or to NetCalendar's enforcement of said rights of defense andindemnity) (items (i) and(ii) above shall be referred to herein collectively as"NetCalendar's Damages").
Procedure for Indemnification of NetCalendar
.  If any action, suit orproceeding shall be commenced against NetCalendar or any claim, demand orassessment be asserted against NetCalendar in respect of which NetCalendarproposes to demand indemnification, NetCalendar shall notify PopMail to thateffect with reasonable promptness. NetCalendar will have the right to causePopMail to assume the entire control of the defense, compromise or settlementthereof, including, at the expense of PopMail, employment of counselsatisfactory to NetCalendar and, in connection therewith, NetCalendar shallcooperate fully to make available to PopMail all pertinent information under itscontrol.  With respect to any action, suit, proceeding claim, demand orassessment made against NetCalendar as to which NetCalendar does not causePopMail to assume control of the defense thereof, PopMail shall thereafterreimburse NetCalendar for all of NetCalendar's Damages, as and when they areincurred.
**OTHER AGREEMENTS OF THE PARTIES
Transfer Restrictions
.  
- The Shares, Purchase Price Shares, the Supplemental Purchase Price Sharesand the Additional Shares (defined in Section 4.4 below) may only be disposed ofpursuant to an effective registration statement under the Securities Act orpursuant to an available exemption from or in a transaction not subject to theregistration requirements thereof. In connection with any transfer of suchsecurities other than pursuant to an effective registration statement, theissuer may require the transferor thereof to provide to the issuer an opinion ofcounsel experienced in the area of federal securities laws selected by thetransferor, the form and substance of which opinion shall be reasonablysatisfactory to the issuer and its counsel, to the effect that such transferdoes not require registration under the Securities Act of 1933, as amended.
- Each of NetCalendar and PopMail agree to the imprinting, so long as isrequired by this Section 4.1(b), of either of the following legends oncertificates and other documents representing the Shares, Purchase Price Shares,Supplemental Purchase Price Shares and Additional Shares: 

Legend (1):

THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATESSECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, INRELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLDEXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACTOR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN ACCORDANCE WITHAPPLICABLE STATE SECURITIES LAWS.

Legend (2):

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDERTHE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, ANDMAY BE TRANSFERRED ONLY IF REGISTERED UNDER SUCH APPLICABLE ACTS OR UPONDELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THECOMPANY, THAT SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
The legends set forth above shall be removed from such certificates andother documents and the issuer shall issue a certificate without any legend(upon surrender of the legended certificates or other documents duly endorsed)to each holder of such certificates and other documents upon which it is stampedif (i) such securities are registered for resale under the Securities Act or(ii) such legend is not required pursuant to Rule 144(k) promulgated under theSecurities Act. Each of NetCalendar and PopMail agrees that it will provide theother, upon request, with certificates representing the issuer's securitiesissued pursuant to this Agreement free from such legend at such time as suchlegend is no longer required in accordance with this Section.
Appointment to Board of Advisors; Appointment to Board of Directors
.
- Promptly upon the Closing of the purchase of the Shares contemplated by thisAgreement, NetCalendar shall appoint one person designated by PopMail to theNetCalendar Board of Advisors and permit such person (or any replacementdesignated by PopMail) to fully participate in the duties and other activitiesof the Board of Advisors, and shall reimburse such person for any and allexpense reasonably incurred in connection therewith, so long as PopMail owns anyof the Shares.  PopMail hereby designates ______________ as PopMail's firstappointee to serve on the NetCalendar Board of Advisors.
- In the event that PopMail fully exercises the Option pursuant to Section 4.4below as to all 27,624 Additional Shares, and PopMail causes the InitialRegistration Statement defined in Section 5.1 to be declared effective on orbefore the Initial Registration Due Date, NetCalendar shall cause PopMail'sdesignee (or any replacement designee subsequently identified by PopMail) to beappointed to the NetCalendar Board of Directors.  So long as (i) the InitialRegistration Statement is maintained effective throughout the RegistrationPeriod and any Supplemental Registration Statement is maintained effectivethroughout the Supplemental Registration Period, and (ii) PopMail owns in excessof eight percent (8%) of NetCalendar's issued and outstanding shares of capitalstock, on a fully diluted, as-converted basis, PopMail's designee shall continueto serve on the NetCalendar Board of Directors.
Option to Purchase Additional Shares
.  NetCalendar hereby grants toPopMail an option (the "Option") to purchase up to 27,624 additional shares ofNetCalendar common stock (the "Additional Shares") at a per share price of$36.2004 (the "Exercise Price"), payable in cash. To exercise the Option,PopMail must deliver written notice thereof (the "Option Notice") to NetCalendaron or before the 30th day following the Initial Closing Date.  In the event thatPopMail elects to exercise the Option, the parties shall select a mutuallyagreeable closing date, time and location within thirty (30) days of the OptionNotice, at which PopMail will deliver to NetCalendar the aggregate ExercisePrice and NetCalendar shall deliver to PopMail certificates representing theAdditional Shares.
Notice of Breaches
.  Each of NetCalendar and PopMail shall giveprompt written notice to the other of any breach of any representation, warrantyor other agreement contained in this Agreement, as well as any events oroccurrences arising after the date hereof and prior to the Initial Closing Datewhich would reasonably be likely to cause any representation or warranty orother agreement of such party, as the case may be, contained herein to bematerially incorrect or breached as the date thereof.  However, no disclosure byeither party pursuant to this Section 4.5 shall be deemed to cure any breach ofany representation, warranty or other agreement contained herein
**REGISTRATION OF POPMAIL COMMON STOCK
Filing of Initial Registration Statement
.  On or before the 30thday following the Initial Closing Date, PopMail shall prepare and file aregistration statement on Form S-3 (or any successor form thereto) (the "InitialRegistration Statement") covering the resale of the Purchase Price Shares issuedpursuant to Section 1.2 hereof with the SEC pursuant to Rule 415 of theSecurities Act.  PopMail will use its reasonable best efforts to have theInitial Registration Statement declared effective by the SEC on or before the75th day following the Initial Closing Date (the Initial Registration DueDate").  PopMail  shall maintain the effectiveness of the Initial RegistrationStatement at all times until the second anniversary of the Initial Closing Date(the "Registration Period").
Resale of Purchase Price Shares
.  NetCalendar may sell pursuant tothe Initial Registration Statement up to 25 percent of the Purchase Price Sharesduring each of four successive 90 day periods commencing on the date the InitialRegistration Statement is declared effective by the SEC (the "Effective Date").NetCalendar may sell any remaining Purchase Price Shares pursuant to the InitialRegistration Statement during the period commencing on the 361 day following theEffective Date and ending upon the expiration of the Registration Period and,thereafter, pursuant to Rule 144 promulgated under the Securities Act of 1933,as amended.
Supplemental Registration Statement
.  In the event that PopMailissues Supplemental Purchase Price Shares pursuant to the provisions of Section1.4 hereof, PopMail shall prepare and file a registration statement on Form S-3(or any successor form thereto) (the "Supplemental Registration Statement")covering the resale of such securities with the SEC pursuant to Rule 415 of theSecurities Act.  PopMail will use its reasonable best efforts to have theSupplemental Registration Statement declared effective by the SEC on or beforethe 75th day following the Supplemental Closing Date (the "SupplementalRegistration Due Date"). PopMail shall maintain the effectiveness of theSupplemental Registration Statement at all times until the first anniversary ofthe Supplemental Closing Date (the "Supplemental Registration Period").
Filing of Amendments
.  PopMail shall prepare and file with the SECsuch amendments (including post-effective amendments) and supplements to theInitial Registration Statement (and, if applicable, the SupplementalRegistration Statement) and the prospectus(es) used in connection therewith asmay be necessary to keep such Registration Statements effective at all timesthrough the Registration Period and the Supplemental Registration Period.
Qualification Under Blue Sky Laws
. PopMail shall use its reasonablebest efforts to (i) register and qualify the securities covered by the InitialRegistration Statement and Supplemental Registration Statement (collectively,the "PopMail Shares") under such other securities or blue sky laws of suchjurisdictions as NetCalendar may reasonably request, (ii) prepare and file inthose jurisdictions such amendments (including post-effective amendments) andsupplements, (iii) take such other actions as may be necessary to maintain suchregistrations and qualifications in effect at all times through the RegistrationPeriod and, if applicable, the Supplemental Registration Period and (iv) takeall other actions reasonably necessary or advisable to qualify the PopMailShares for sale in such jurisdictions; 
provided
, 
however
, thatPopMail shall not be required in connection therewith or as a condition theretoto (I) qualify to do business in any jurisdiction where it would not otherwisebe required to qualify but for this Section 5.5, (II) subject itself to generaltaxation in any such jurisdiction, (III) file a general consent to service ofprocess in any such jurisdiction (excluding execution of a Form U-2 UniformConsent to Service of Process or equivalent filing which may be required forsuch registration, qualification or any exemption therefrom), or (IV) make anychange in its charter or bylaws.
Registration Expenses
.  All expenses (other than fees and expenses ofinvestment bankers  retained by NetCalendar, if any, and brokerage commissions)incurred in connection with registrations, filings or qualifications pursuant tothis Article 5, including, without limitation, all registration, listing andqualifications fees, printers and accounting fees and the fees and disbursementsof counsel for PopMail, shall be borne by PopMail; 
provided
,
however
, that NetCalendar shall bear the fees and out-of-pocket expensesof its own legal counsel and any  accountants and agents engaged byNetCalendar.
Indemnification
.  In the event any PopMail Shares are included in aregistration statement pursuant to this Agreement:
- To the extent permitted by law, PopMail (in such capacity an "IndemnifyingParty") shall indemnify and hold NetCalendar (in such capacity an "IndemnifiedPerson") harmless against any losses, claims, damages, expenses or liabilities(collectively the "Claims") to which NetCalendar becomes subject under theSecurities Act, the Securities Exchange Act of 1934, as amended (the "ExchangeAct") or otherwise, insofar as such Claims (or actions or proceedings, whethercommenced or threatened, in respect thereof) arise out of or are based upon anyof the following statements, omissions or violations in the Initial RegistrationStatement or Supplemental Registration Statement, or any post-effectiveamendment thereof, or any prospectus included therein: (i) any untrue statementor alleged untrue statement of a material fact contained in either registrationstatement or any post-effective amendment thereof or the omission or allegedomission to state therein a material fact required to be stated therein ornecessary to make the statements therein not misleading, (ii) any untruestatement or alleged untrue statement of a material fact contained in anypreliminary prospectus if used prior to the effective date of the applicableregistration statement, or contained in the final prospectus (as amended orsupplemented, if PopMail files any amendment thereof or supplement thereto withthe SEC) or the omission or alleged omission to state therein any material factnecessary to make the statements made therein, in light of the circumstancesunder which the statements therein were made, not misleading or (iii) anyviolation or alleged violation by PopMail of the Securities Act, the ExchangeAct or any state securities law or any rule or regulation (the matters in theforegoing clauses (i) through (iii) being, collectively, "Violations").  PopMailshall reimburse NetCalendar promptly as such expenses are incurred and are dueand payable, for any legal fees or other reasonable expenses incurred byNetCalendar in connection with investigating or defending any such Claim.Notwithstanding anything to the contrary contained herein, the indemnificationagreement contained in this Section 5.7 shall not apply to a Claim arising outof or based upon a Violation which occurs in reliance upon and in conformitywith information furnished in writing to PopMail by NetCalendar expressly foruse in connection with the preparation of either the Initial RegistrationStatement or the Supplemental Registration Statement or any such amendmentthereof.  Such indemnity shall remain in full force and effect regardless of anyinvestigation made by or on behalf of such Indemnified Person.
- In connection with the Initial Registration Statement and, if applicable,the Supplemental Registration Statement, NetCalendar (in such capacity an"Indemnifying Party") agrees to indemnify and hold harmless, to the same extentand in the same manner set forth in Section 5.7(a), PopMail, each of itsdirectors, each of its officers who signs the Registration Statement, eachperson, if any, who controls PopMail within the meaning of the Securities Act orthe Exchange Act, and any other shareholder selling securities pursuant to theapplicable registration statement or any of its directors or officers or anyperson who controls such shareholder within the meaning of the Securities Act orthe Exchange Act (each an "Indemnified Party"), against any Claim to which anyof them may become subject, under the Securities Act, the Exchange Act orotherwise, insofar as such Claim arises out of or is based upon any Violation,in each case to the extent (and only to the extent) that such Violation occursin reliance upon and in conformity with written information furnished to PopMailby NetCalendar expressly for use in connection with either or both registrationstatement; and NetCalendar will promptly reimburse any legal or other expensesreasonably incurred by the Indemnified Parties in connection with investigatingor defending any such Claim;  provided ,  however,  that the indemnityagreement contained in this Section 5.7(b) shall not apply to amounts paid insettlement of any Claim if such settlement is effected without the prior writtenconsent of NetCalendar, which consent shall not be unreasonably withheld; provided ,  further,  however,  that NetCalendar shall beliable under this Section 5.7(b) for only that amount of a Claim as does notexceed the net proceeds to NetCalendar as a result of the sale of the PurchasePrice Shares or the Supplemental Purchase Price Shares pursuant to either theInitial Registration Statement or the Supplemental Registration Statement. Suchindemnity shall remain in full force and effect regardless of any investigationmade by or on behalf of such Indemnified Party.
- Promptly after receipt by the Indemnified Person or any Indemnified Partyunder this Section 5.7 of notice of the commencement of any action (includingany governmental action), the Indemnified Person or such Indemnified Partyshall, if a Claim in respect thereof is to made against any Indemnifying Partyunder this Section 5.7, deliver to the Indemnifying Party a written notice ofthe commencement thereof and this Indemnifying Party shall have the right toparticipate in, and, to the extent the Indemnifying Party so desires, jointlywith any other Indemnifying Party similarly noticed, to assume control of thedefense thereof with counsel mutually satisfactory to the Indemnifying Parties; provided ,  however , that an Indemnified Person or Indemnified Partyshall have the right to retain its own counsel, with the fees and expenses to bepaid by the Indemnifying Party, if, in the reasonable opinion of counselretained by the Indemnifying Party, the representation by such counsel of theIndemnified Person or Indemnified Party and the Indemnifying Party would beinappropriate due to actual or potential differing interests between suchIndemnified Person or Indemnified Party and other party represented by suchcounsel in such proceeding.  The failure to deliver written notice to theIndemnifying Party within a reasonable time of the commencement of any suchaction shall not relieve such Indemnifying Party of any liability to theIndemnified Person or Indemnified Party under this Section 5.7, except to theextent that the Indemnifying Party is prejudiced in its ability to defend suchaction. The indemnification required by this Section 5.7 shall be made byperiodic payments of the amount thereof during the course of the investigationor defense, as such expense, loss, damage or liability is incurred and is dueand payable.
Contribution
.
To the extent any indemnification provided forherein is prohibited or limited by law, the Indemnifying Party agrees to makethe maximum contribution with respect to any amounts for which it wouldotherwise be liable under Section 5.7 to the fullest extent permitted by law;
provided
, 
however
, that (a) no contribution shall be made undercircumstances where the maker would not have been liable for indemnificationunder the fault standards set forth in Section 5.7, (b) no person guilty offraudulent misrepresentation (within the meaning of Section 11(f) of theSecurities Act) shall be entitled to contribution from any person who was notguilty of such fraudulent misrepresentation and (c) contribution by NetCalendarshall be limited in amount to the net amount of proceeds received by NetCalendarfrom the sale of the Purchase Price Shares and the Supplemental Purchase PriceShares.
Reports under Exchange Act
.  With a view to making available toNetCalendar the benefits of Rule 144 or any other similar rule or regulation ofthe SEC that may at any time permit NetCalendar to sell securities of PopMail tothe public without registration, until such time as NetCalendar have sold allthe Purchase Price Shares and the Supplemental Purchase Price Shares pursuant tothe Initial Registration Statement and, if applicable, the SupplementalRegistration Statement, or Rule 144, PopMail agrees to:
- make and keep public information available, as those terms are understoodand defined in Rule 144;
- file with the SEC all reports and other documents required of PopMail underthe Securities Act and the Exchange Act; and
- furnish to NetCalendar so long as NetCalendar owns Purchase Price Shares orSupplemental Purchase Price Shares, promptly upon request, (i) a writtenstatement by PopMail that it has complied with the reporting requirements ofRule 144, the Securities Act and the Exchange Act, (ii) a copy of the mostrecent annual or quarterly report of PopMail and such other reports anddocuments so filed by PopMail and (iii) such other information as may bereasonably requested to permit NetCalendar to sell such securities pursuant toRule 144 without registration.
**TERMINATION; REMEDIES
Termination
.  This Agreement will be terminated and, except asset forth below, the provisions hereof shall have no further force or effect inthe earliest event that:
- The average closing share price of PopMail common stock for the tenconsecutive trading days preceding the second business day prior to the InitialClosing Date is less than $.50 and NetCalendar rejects PopMail's offer ofPurchase Price Shares made pursuant to Section 1.1;
- The Initial Registration Statement is not declared effective by the SEC onor before the Initial Registration Due Date, and NetCalendar elects (as herebyauthorized) to terminate this Agreement at any time during the 60-day periodfollowing the Initial Registration Due Date by providing written notice thereof(the "Termination Notice") to PopMail during such period;  provided , however , that NetCalendar may not elect to terminate this Agreement ifthe Initial Registration Statement is declared effective by the SEC prior toNetCalendar providing such Termination Notice.  Within ten (10) days of the dateof such Termination Notice, PopMail shall deliver to NetCalendar thecertificates representing the Shares and NetCalendar shall deliver to PopMailthe certificates representing the Purchase Price Shares; or
- The Initial Registration Statement, having once been declared effective bythe SEC, is not maintained effective by PopMail throughout the RegistrationPeriod, and NetCalendar elects (as hereby authorized) to terminate thisAgreement at any time during the 60-day period following the date upon which theInitial Registration shall become not effective, by providing written noticethereof (the "Termination Notice") to PopMail during such period; provided,however, that NetCalendar may not elect to terminate this Agreement if theInitial Registration Statement, having become not effective, is again madeeffective by the SEC prior to NetCalendar providing such Termination Notice.Within ten (10) days of the date of such Termination Notice, NetCalendar shalldeliver to PopMail certificates representing such number of Purchase PriceShares as shall then be held by NetCalendar, and PopMail shall deliver toNetCalendar  certificates representing such number of Shares as shall equal thevalue of the Purchase Price Shares tendered by NetCalendar hereunder, with thevalue of the Purchase Price Shares and the Shares exchanged under this Section6.1(c) each being determined as of the Initial Closing Date.
Litigation Expense
.  In the event any party hereto is made or shallbecome a party to any litigation commenced by or against the other partyinvolving the enforcement of any of the rights or remedies of such party, orarising on account of a default of the other party in its performance of any ofthe other party's obligations hereunder, then the prevailing party in suchlitigation shall be entitled to full reimbursement by the other party of any andall reasonable costs incurred by such prevailing party in connection with suchlitigation, including the reasonable costs, fees and expenses ofattorneys.
**MISCELLANEOUS
Fees and Expenses
.  Each party shall pay the fees and expenses ofits advisers and other experts in connection with the transactions contemplatedby this Agreement.
Entire Agreement
.  This Agreement, together with any Exhibits andSchedules hereto, contains the entire understanding of the parties with respectto the subject matter hereof and supersedes all prior agreements andunderstandings, oral or written, with respect to such matters.
Notices
.  Any and all notices or other communications or deliveriesrequired or permitted to be provided hereunder shall be in writing and shall bedeemed given and effective on the earliest of (i) the date of transmission, ifsuch notice or communication is delivered via facsimile at the facsimiletelephone number specified in this Section prior to 4:30 p.m. (Minneapolis time)on a business day, (ii) the business day after the date of transmission, if suchnotice or communication is delivered via facsimile at the facsimile telephonenumber specified herein later than 4:30 p.m. (Minneapolis time) on any date andearlier than 11:59 p.m. (Minneapolis time) on such date, (iii) the business dayfollowing the date of mailing, if sent by nationally recognized overnightcourier service, or (iv) upon actual receipt by the party to whom such notice isrequired to be given.  The address for such notices and communications shall beas follows:

If to PopMail:

PopMail.com, inc.

5700 W. Plano Parkway Suite 1000

Plano, TX  75093

telephone:  972-381-2742

facsimile:  972-381-2743 

Attention: Mr. Gary Schneider

With copy to:

Philip J. Tilton, Esq.

Maslon Edelman Borman & Brand, LLP

3300 Wells Fargo Center

Minneapolis, MN 55402

telephone: 612-672-8200

facsimile: 612-672-8397

If to NetCalendar:

NetCalendar, Inc. 

1901 N. Ft. Myer Drive, Suite 702

Arlinton, Virginia  22209

telephone:  703.812.1500

facsimile:  703.812.1507

Attention:  Mr. Edward L. Neumann

With copy to:

J. Stephen Britt, Esq.

Enterprise Business Law Group LLC

7900 Westpark Drive, Suite T-305

McLean, Virginia  22102

telephone:  703.848.8317

facsimile:  703.848.8333
Waivers
.  No waiver of any default with respect to any provision,condition or requirement of this Agreement shall be deemed to be a continuingwaiver in the future or a waiver of any other provision, condition orrequirement hereof, nor shall any delay or omission of either party to exerciseany right hereunder in any manner impair the exercise of any such right accruingto it thereafter.
Headings
.  The headings herein are for convenience only, do notconstitute a part of this Agreement and shall not be deemed to limit or affectany of the provisions hereof.
Assignment and Delegation
.  Neither party may assign its rights nordelegate its duties or obligations arising under this Agreement without thewritten consent of the other, which consent may be withheld for any reason or noreason.  The assignment by a party of this Agreement or any rights hereundershall not affect the obligations of such party under this Agreement.
No Third-Party Beneficiaries
.  This Agreement is intended for thebenefit of the parties hereto and their respective permitted successors andassigns and, other than with respect to permitted assignees under Section 7.6,is not for the benefit of, nor may any provision hereof be enforced by, anyother Person.
Governing Law
.  This Agreement shall be governed by and construed andenforced in accordance with the internal laws of the State of Minnesota withoutregard to the principles of conflicts of law thereof.
Survival
.  The representations, warranties, agreements and covenantscontained in this Agreement shall survive after the Closing Date.
Execution
.  This Agreement may be executed in two or morecounterparts, all of which when taken together shall be considered one and thesame agreement and shall become effective when counterparts have been signed byeach party and delivered to the other party, it being understood that bothparties need not sign the same counterpart.  In the event that any signature isdelivered by facsimile transmission, such signature shall create a valid andbinding obligation of the party executing (or on whose behalf such signature isexecuted) the same with the same force and effect as if such facsimile signaturepage were an original thereof.
Severability
.  In case any one or more of the provisions of thisAgreement shall be invalid or unenforceable in any respect, the validity andenforceability of the remaining terms and provisions of this Agreement shall notin any way be affected or impaired thereby and the parties will attempt to agreeupon a valid and enforceable provision which shall be a reasonable substitutetherefor, and upon so agreeing, shall incorporate such substitute provision inthis Agreement.
Remedies
.  Each of the parties to this Agreement acknowledges andagrees that the other parties would be damaged irreparably in the event any ofthe provisions of this Agreement are not performed in accordance with theirspecific terms or otherwise are breached.  Accordingly, each of the partieshereto agrees that the other parties shall be entitled to an injunction orinjunctions to prevent breaches of the provisions of this Agreement and toenforce specifically this Agreement and the terms and provisions of thisAgreement in any action instituted in any court of the United States of Americaor any state thereof having jurisdiction over the parties to this Agreement andthe matter, in addition to any other remedy to which they may be entitled, atlaw or in equity.
** 

IN WITNESS WHEREOF, the parties hereto have caused this Stock PurchaseAgreement to be duly executed by their respective authorized persons as of thedate first indicated above.

NETCALENDAR, INC.

 

By:  _______________________

	Edward L. Neumann

Its: Chief Executive Officer

 

POPMAIL.COM, INC.

 

By:  _______________________

	Gary Schneider

Its: Chief Executive Officer

 

 **********************