{"id":42987,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-contribution-investment-and-merger.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-contribution-investment-and-merger","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-contribution-investment-and-merger.html","title":{"rendered":"Agreement and Plan of Contribution, Investment and Merger – National Broadcasting Co. Inc. and Xoom.com Inc."},"content":{"rendered":" \n AGREEMENT AND PLAN OF\n CONTRIBUTION, INVESTMENT AND MERGER\n\n\n This Agreement and Plan of Contribution, Investment and Merger, dated\nas of May 9, 1999 (hereinafter, the \"Agreement\"), among National Broadcasting\n --------- \nCompany, Inc., a Delaware corporation (\"NBC\"), GE Investments Subsidiary, Inc.,\n --- \na Delaware corporation (\"GE Investments Sub\"), Neon Media Corporation, a\n ------------------ \nDelaware corporation (\"NMC\"), Xenon 2, Inc., a Delaware corporation (\"Xenon 2\")\n --- ------- \nand XOOM.com, Inc., a Delaware corporation (\"Xoom\").\n ---- \n\n\n W I T N E S S E T H:\n\n WHEREAS, NBC owns all of the outstanding capital stock of NBC\nMultimedia, Inc., a Delaware corporation (\"NBC Multimedia\");\n -------------- \n\n WHEREAS, NBC Multimedia formed NMC for the purpose of effecting the\ntransactions contemplated by this Agreement and all of its outstanding capital\nstock is owned by NBC Multimedia;\n\n WHEREAS, Xoom, Xenon 2, Xenon 3, Inc., a Delaware corporation (\"Xenon\n -----\n3\"), SNAP! LLC, a Delaware limited liability company (\"SNAP\") and CNET, Inc., a\n- ---- \nDelaware corporation (\"CNET\"), are parties to an Agreement and Plan of\n ---- \nContribution and Merger dated as of the date hereof (the \"Xenon 2 Merger\n --------------\nAgreement\") pursuant to which, among other things, the parties thereto have\n--------- \nagreed that (i) Xenon 3 will merge with and into Xoom, with Xoom as the\nsurviving corporation, and each outstanding share of common stock of Xoom, par\nvalue $0.0001 per share, will be converted into the right to receive one share\nof Class A Common Stock of Xenon 2 and (ii) CNET will contribute to Xenon 2\ncertain assets in exchange for shares of Class A Common Stock of Xenon 2;\n\n WHEREAS, Xoom owns all of the outstanding capital stock of Xenon 2,\nand Xenon 2 owns all of the outstanding stock of Xenon 3;\n\n WHEREAS, the closing of the transactions contemplated by the Xenon 2\nMerger Agreement is a condition to the closing of the transactions contemplated\nby this Agreement;\n\n WHEREAS, while the closing under the Xenon 2 Merger Agreement and the\nclosing under this Agreement are not contingent on each other, it is intended\nthat both transactions represent a series of steps in the formation of Xenon 2\nwhereby the rights of all the parties are defined;\n\n WHEREAS, the consummation of the transactions contemplated by the\nXenon 2 Merger Agreement and this Agreement would combine certain assets of NBC\nand CNET with the existing business of Xoom in a new holding company structure\nintended to achieve important business objectives;\n\n \n 2\n\n\n WHEREAS, the Board of Directors of each of Xoom, Xenon 2 and Xenon 3\nbelieve it is advisable for such parties to enter into this Agreement and to\nconsummate the transactions provided for herein;\n\n WHEREAS, concurrently with the execution hereof, in order to induce\nNBC to enter into this Agreement, NBC, Xoom and certain stockholders of Xoom\nare entering into a voting agreement providing for certain voting and other\nrestrictions with respect to shares of Xoom common stock owned by such\nstockholders, all upon the terms and conditions specified therein; and\n\n WHEREAS, NBC, GE Investments Sub, NMC, Xoom and Xenon 2 desire to make\ncertain representations, warranties, covenants and other agreements in\nconnection with the transactions contemplated hereby.\n\n NOW, THEREFORE, in consideration of the premises and the mutual\npromises contained herein, and intending to be legally bound, the parties hereby\nagree as follows:\n\n\n ARTICLE I\n\n DEFINITIONS\n -----------\n\n 1.1 Definitions. (a) Capitalized terms used and not defined in this\n ----------- \nAgreement shall have the following meanings:\n\n \"Advertising Agreement\" means the advertising agreement between Xenon\n --------------------- \n2 and NBC to be dated as of the Closing Date having the terms set forth in\n \nExhibit A hereto.\n--------- \n\n \"Affiliate\" means with respect to a specified Person, any Person that\n --------- \ndirectly or indirectly, through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, the specified Person. As used\nin this definition, the term \"control\" means the possession, directly or\nindirectly, of the power to direct or cause the direction of the management and\npolicies of a Person, whether through ownership of voting securities, as trustee\nor executor, by contract or credit arrangement or otherwise.\n\n \"Business Day\" means a day, other than Saturday or Sunday, on which\n ------------ \ncommercial banks in New York City are open for the general transaction of\nbusiness.\n \n \"Class A Common Stock\" means the Class A common stock, $0.0001 par\n -------------------- \nvalue per share, of Xenon 2.\n\n \"Class B Common Stock\" means the Class B common stock, $0.0001 par\n -------------------- \nvalue per share, of Xenon 2.\n\n \n 3\n\n \"CNBC.com\" means the entity to be formed by NBC or its Subsidiaries\n -------- \npursuant to Section 6.10 to conduct business through the CNBC.com universal\n ------------ \nresource locator.\n \n \"CNET Standstill Agreement\" means a Standstill Agreement between Xenon\n ------------------------- \n2 and CNET to be dated as of the Closing Date substantially in the form of\n \nExhibit B hereto.\n--------- \n\n \"CNET Voting Agreement\" means a Voting and Right of First Offer\n --------------------- \nAgreement between CNET and NBC to be dated as of the Closing Date substantially\nin the form of Exhibit C hereto.\n --------- \n\n \"Code\" means the Internal Revenue Code of 1986, as amended.\n ---- \n\n \"Contributed Assets\" means the Xoom Stock, the interests in SNAP and\n ------------------ \nthe NBC Multimedia Assets.\n\n \"Environmental Laws\" means any and all laws, rules, orders,\n ------------------ \nregulations, statutes, ordinances, guidelines, codes, decrees, or other legally\nenforceable requirement (including, without limitation, common law) of any\nforeign government, the United States, or any state, local, municipal or other\ngovernmental authority, regulating, relating to or imposing liability or\nstandards of conduct concerning protection of the environment or of human\nhealth, or employee health and safety.\n\n \"ERISA\" means the Employee Retirement Income Security Act of 1974, as\n ----- \namended.\n\n \"Exchange Act\" means the Securities Exchange Act of 1934, as amended.\n ------------ \n\n \"Final Determination\" means a determination as defined in Section\n ------------------- \n1313(a) of the Code or any other event which finally and conclusively\nestablishes the amount of any liability for Taxes.\n\n \"Flying Disc\" means Flying Disc Investments Limited Partnership, a\n ----------- \nNevada limited partnership.\n\n \"GAAP\" means generally accepted accounting principles in the United\n ---- \nStates.\n\n \"Governance Agreement\" means the governance agreement between Xenon 2\n -------------------- \nand NBC to be dated as of the Closing Date substantially in the form set forth\nin Exhibit D hereto.\n --------- \n\n \"Governmental Authority\" means any nation or government, any state or\n ---------------------- \nother political subdivision thereof, and any entity exercising executive,\nlegislative, judicial, regulatory or administrative functions of or pertaining\nto government.\n\n \"HSR Act\" means the Hart-Scott-Rodino Antitrust Improvements Act of\n ------- \n1976, as amended.\n\n \n 4\n\n \"Implementing Agreements\" means, the NBC Note, the Xenon 2 Convertible\n ----------------------- \nNote, the Governance Agreement, the Registration Rights Agreement, the License\nAgreement, the Advertising Agreement, the CNET Voting Agreement and the CNET\nStandstill Agreement.\n\n \"Independent Accountants\" means a nationally recognized firm of\n ----------------------- \nindependent certified public accountants selected and retained by the mutual\nagreement of NBC and Xenon 2.\n\n \"Intellectual Property\" shall mean any patents, patent registrations,\n --------------------- \npatent applications, trademarks, trademark registrations, trademark\napplications, tradenames, copyrights, copyright applications, copyright\nregistrations, franchises, universal resource locators, domain names, permits,\nlicenses, processes, formulae, proprietary technology, inventions, trade\nsecrets, know-how, product descriptions and specifications.\n\n \"Knowledge of\" or \"best Knowledge of\" a party hereto when modifying\n ------------ ----------------- \nany representation and warranty shall mean that such party has no actual\nknowledge that such representation and warranty is not true and correct to the\nextent provided therein and that (i) such party has made appropriate\ninvestigations and inquiries of its officers and responsible employees and (ii)\nnothing has come to its attention in the course of such investigation and\ninquiries which would cause such party, in the exercise of due care, to believe\nthat such representation and warranty is not true and correct to the extent\nprovided therein; provided that each of the parties hereto shall be deemed to\n -------- \nhave satisfied the foregoing requirements by making appropriate investigations\nand inquiries of its officers and employees listed on Schedule 1.1(a), and no\n --------------- \nknowledge of any other director, officer or employee of such party shall be\nimputed to the persons listed on the Schedule or to such party.\n\n \"Liability\" means, as to any Person, all debts, liabilities and\n --------- \nobligations, direct, indirect, absolute or contingent of such Person, whether\naccrued, vested or otherwise, whether known or unknown and whether or not\nactually reflected, or required to be reflected, in such Person's balance\nsheets.\n\n \"License Agreement\" means the license agreement between NBC Multimedia\n ----------------- \nand NBC to be dated as of the date hereof substantially in the form set forth in\n \nExhibit E hereto.\n--------- \n\n \"Lien\" means any mortgage, pledge, security interest, encumbrance,\n ---- \nlien or charge of any kind.\n\n \"Losses and Expenses\" means any and all damages, claims, losses,\n ------------------- \nexpenses, costs, obligations and Liabilities, including, without limiting the\ngenerality of the foregoing, Liabilities for all reasonable attorneys' fees and\nexpenses (including attorney and expert fees and expenses incurred to enforce\nthe terms of this Agreement), provided, however, that \"Losses and Expenses\"\n -------- ------- \nshall not include any lost profits or other incidental, consequential or\npunitive damages.\n\n \"Material Adverse Effect\" means, for any party, a material adverse\n ----------------------- \neffect on (i) the assets, liabilities, business, results of operations or\nfinancial condition of (A) Xoom, Xenon 2 \n\n \n 5\n\nand their respective Subsidiaries, taken as a whole, in the case of Xoom or (B)\nthe NBC Multimedia Businesses and SNAP, taken as a whole, in the case of NBC; or\n(ii) the ability of such party to perform its obligations hereunder, under the\nVoting Agreement, the Option Agreement or under the Implementing Agreements to\nwhich it is a party. Notwithstanding the foregoing, the occurrence of one of the\nfollowing events, without the occurrence of any other events, shall not be\ndeemed by itself to constitute a Material Adverse Effect: (i) a change in the\nmarket price or trading volume of the outstanding equity securities of a party\nthat is publicly traded, (ii) the failure of a party to meet earnings estimates\nof equity analysts as reflected in the First Call consensus estimates for any\nperiod (or for which earnings are released) on or after the date of this\nAgreement and prior to the Effective Time or (iii) adverse conditions affecting\nthe U.S. economy as a whole or affecting the multi-media industry (including\ninternet-related businesses) as a whole (provided that in each case such changes\n -------- \ndo not affect such party in a disproportionate manner).\n\n \"Materials of Environmental Concern\" means any gasoline or petroleum\n ---------------------------------- \n(including, without limitation, crude oil or any fraction thereof) or petroleum\nproducts, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,\npollutants, contaminants, radioactivity, and any other substances of any kind,\nwhether or not any such substance is defined as hazardous or toxic under any\nEnvironmental Law, that is regulated pursuant to or could give rise to liability\nunder any Environmental Law.\n\n \"Member of the Controlled Group\" means each trade or business, whether\n ------------------------------ \nor not incorporated, which would be treated as a single employer with the named\ntrade or business under Section 4001 of ERISA or Section 414(b), (c), (m) or (o)\nof the Code.\n\n \"Nasdaq\" means the Nasdaq National Market.\n ------ \n\n \"NBC.com\" means the NBC.com universal resource locator and the\n ------- \nbusiness conducted through it.\n\n \"NBC-IN\" means the NBC-IN.com universal resource locator and the\n ------ \nbusiness conducted through it.\n \n \"NBC Multimedia Assets\" means the assets, properties and other rights\n --------------------- \nof NBC and NBC Multimedia listed on Schedule 1.1(b) which are to be contributed\n --------------- \nto NMC on the Closing Date.\n\n \"NBC Multimedia Businesses\" means, collectively, NBC.com, Videoseeker\n ------------------------- \nand NBC-IN.\n \n \"NBC Multimedia Liabilities\" means the liabilities of NBC Multimedia\n -------------------------- \nlisted on Schedule 1.1(c) which are to be assumed by NMC on the Closing Date.\n --------------- \n\n \"NBC Note\" means the $340,000,000 note issued by NBC to GE Investments\n -------- \nSub to be transferred to Xenon 2 on the Closing Date.\n\n \n 6\n\n \"Option Agreement\" means the Stock Option Agreement, dated as of the\n ---------------- \ndate hereof, between NBC and Xoom.\n\n \"Other Property or Money\" means other property or money within the\n ----------------------- \nmeaning of Section 351(b) of the Code.\n\n \"Permitted Liens\" means (i) Liens for Taxes that (x) are not yet due\n --------------- \nor delinquent or (y) are being contested in good faith by appropriate\nproceedings and for which adequate reserves have been established in accordance\nwith GAAP; (ii) statutory Liens or landlords', carriers', warehousemen's,\nmechanics', suppliers', materialmen's, repairmen's or other like Liens arising\nin the ordinary course of business with respect to amounts not yet overdue for a\nperiod of 45 days or amounts being contested in good faith by appropriate\nproceedings if a reserve or other appropriate provision, if any, as shall be\nrequired by GAAP shall have been made therefor; (iii) Liens incurred or deposits\nmade in connection with workers' compensation, unemployment insurance and other\ntypes of social security or similar benefits; (iv) Liens incurred or deposits\nmade to secure the performance of tenders, bids, leases, statutory obligations,\nsurety and appeal bonds, government contracts, performance and return-of-money\nbonds and other obligations of like nature; (v) easements, rights-of-way,\nrestrictions and other similar charges or encumbrances on real property\ninterests which, individually or in the aggregate, do not materially interfere\nwith the ordinary conduct of the relevant entity or business, taken as a whole\nor the use of any such real property for its current uses; (vi) leases or\nsubleases granted to others which do not materially interfere with the ordinary\nconduct of the relevant entity or business, taken as a whole; (vii) with respect\nto real property, title defects or irregularities that do not in the aggregate\nmaterially impair the use of the property; (viii) any other Liens imposed by\noperation of law that do not, individually or in the aggregate, have a Material\nAdverse Effect on the relevant entity or business, taken as a whole; and (ix) as\nto any real property leases with respect to which the relevant entity is a\nlessee, any Lien affecting the interest of the landlord thereunder.\n\n \"Person\" means any individual, corporation, partnership, joint\n ------ \nventure, trust, incorporated organization, limited liability company, other form\nof business or legal entity or Governmental Authority.\n\n \"Post-Closing Tax Period\" means any Tax period (or portion thereof)\n ----------------------- \nending after the Closing Date.\n\n \"Pre-Closing Tax Period\" means any Tax period (or portion thereof)\n ---------------------- \nending on or before the Closing Date.\n\n \"Registration Rights Agreement\" means the registration rights\n ----------------------------- \nagreement among Xenon 2, NBC, CNET and Flying Disc to be dated as of the Closing\nDate having the terms set forth in Exhibit F hereto.\n --------- \n\n \"SEC\" means the Securities and Exchange Commission.\n --- \n\n \"Securities Act\" means the Securities Act of 1933, as amended.\n -------------- \n\n \n 7\n\n \"SNAP\" means SNAP! LLC, a Delaware limited liability company.\n ---- \n\n \"SNAP LLC Agreement\" means the limited liability agreement of SNAP, as\n ------------------ \namended from time to time.\n\n \"SNAP Units\" means the units representing limited liability company\n ---------- \ninterests under the SNAP LLC Agreement.\n\n \"Subsidiary\" or \"Subsidiaries\" of any Person means any corporation,\n ---------- ------------ \npartnership, limited liability company, joint venture or other legal entity of\nwhich such Person (either alone or through or together with any other\nsubsidiary) owns, directly or indirectly, more than 50% of the stock or other\nequity interests, the holders of which are generally entitled to vote for the\nelection of the board of directors or other governing body of such corporation\nor other legal entity and any partnership of which such Person serves as general\npartner.\n\n \"Tax Authority\" shall mean any Governmental Authority having\n ------------- \njurisdiction over Taxes.\n\n \"Taxes\" shall mean all federal, state, local and foreign taxes, fees,\n ----- \ncharges and other assessments of a similar nature, whether imposed directly or\nthrough withholding, including, without limitation, any net income, gross\nincome, gross receipts, sales, use, ad valorem, value added, transfer,\nfranchise, profits, license, payroll, employment, excise, severance, stamp,\ncapital stock, occupation, property, environmental or windfall tax, premium,\ncustom, duty or other tax, together with any interest, additions to tax, or\npenalties applicable thereto.\n\n \"Tax Returns\" shall mean all federal, state, local and foreign tax\n ----------- \nreturns, declarations, statements, reports, schedules, forms and information\nreturns and any amended tax returns relating to Taxes.\n\n \"Videoseeker\" means the Videoseeker.com universal resource locator and\n ----------- \nthe business conducted through it.\n\n \"Voting Agreement\" means the Voting Agreement, dated as of the date\n ---------------- \nhereof, among Xoom, NBC, CNET, Chris Kitze and Flying Disc.\n\n \"Xoom Preferred Stock\" means shares of preferred stock, par value\n -------------------- \n$.0001 per share, of Xoom.\n\n \"Xoom Stock\" means shares of common stock, par value $.0001 per share,\n ---------- \nof Xoom.\n\n \"Xenon 2 Convertible Note\" means the $486,894,758 Zero Coupon\n ------------------------ \nConvertible Debenture due 2006 issued by Xenon 2 to GE Investments Sub on the\nClosing Date having the terms set forth in Exhibit G hereto.\n --------- \n\n \n 8\n\n \"Xenon 2 Merger Agreement\" means the Agreement and Plan of\n ------------------------ \nContribution and Merger, dated as of the date hereof, among Xoom, Xenon 2, Xenon\n3, SNAP and CNET.\n\n \n \n Term Section\n ---- -------\n \n Certificate of Merger 3.3\n Claim Notice 8.3\n Class A Common Stock 1.1\n Class B Common Stock 1.1\n Closing 3.2\n Closing Date 3.2\n Effective Time 3.3\n Financial Information 4.1(e)\n Form S-4 6.1\n Indemnified Party 6.6(d)\n Intellectual Property 1.1\n Material Transaction Proposal 5.5(c)\n Merger 3.1\n Merger Consideration 3.8\n NBC Multimedia Business Intellectual Property 4.1(k)\n NBC Plans 6.7(b)(i)\n Nominees 6.6\n Non-Plan Option 6.8\n Notice Period 8.3\n Option Plan 6.8\n Proxy Statement 6.1\n Required Consents 6.4\n SEC Documents 4.3(h)(i)\n SNAP Balance Sheet 4.2(f)\n SNAP Budget 4.2(i)\n SNAP Intellectual Property 4.2(l)\n SNAP Plans 4.2(p)\n Stockholder Approvals 5.5\n Stockholder Meeting 6.2\n Surviving Corporation 3.1\n Takeover Proposal 5.5(c)\n Vacation Policy 6.7(b)(v)\n Xoom Budget 4.3(k)\n Xoom ESPP 4.3(g)\n Xoom Intellectual Property 4.3(n)\n Xoom Options 6.8\n \n \n\n \n 9\n\n ARTICLE II\n\n CONTRIBUTIONS AND ISSUANCES\n ---------------------------\n\n\n 2.1 Contributions to NBC Multimedia. (a) Subject to the satisfaction or\n ------------------------------- \nwaiver of the conditions set forth in this Agreement, at the Closing and\nimmediately prior to the Effective Time (as defined in Section 3.3), NBC shall\n ----------- \ncontribute to NBC Multimedia, and NBC Multimedia shall accept, a 10% equity\ninterest in CNBC.com, which interest shall be subject to the rights and\nobligations set forth on Schedule 2.1.\n ------------ \n\n (b) In connection with the transactions described in Section 2.1(a),\n -------------- \nNBC shall execute, and shall cause NBC Multimedia to execute all contribution,\ntransfer, assumption and other agreements which are reasonably necessary to\neffect the transactions described therein. The CNBC.com interest shall be\ntransferred free and clear of all Liens, except those set forth on Schedule\n2.1(a).\n\n 2.2 Contributions to NMC; Issuances of NMC Capital Stock. (a) Subject to\n ---------------------------------------------------- \nthe satisfaction or waiver of the conditions set forth in this Agreement, at the\nClosing and immediately prior to the Effective Time, NBC shall, or shall cause\nNBC Multimedia, to assign and contribute to NMC, and NMC shall accept, all of\nNBC's and NBC Multimedia's right, title and interest in the NBC Multimedia\nAssets, and NBC and NBC Multimedia shall assign and contribute to NMC, and NMC\nshall assume, all of the NBC Multimedia Liabilities.\n\n (b) In connection with the transactions described in Section 2.2(a),\n -------------- \nNBC, NBC Multimedia, and NMC shall execute all contribution, transfer,\nassumption and other agreements which counsel for NBC and Xoom determine are\nreasonably necessary to effect the transactions described therein. All of the\nassets transferred pursuant to Section 2.2(a) shall be transferred free and\n -------------- \nclear of all Liens (other than any Liens imposed by or on behalf of Xenon 2).\n\n (c) In exchange for the assignments and contributions set forth in\n \nSection 2.2(a), at the Closing and concurrently therewith, NMC shall issue\n-------------- \n13,764,726 shares of its common stock, par value $.0001 per share, which until\nthe Effective Time shall represent all of the outstanding capital stock of NMC,\nto NBC Multimedia.\n\n 2.3 Contributions To Xenon 2; Issuances of Xenon 2 Capital Stock. (a)\n ------------------------------------------------------------ \nSubject to the satisfaction or waiver of the conditions set forth in this\nAgreement, at the Closing and immediately after the Effective Time, NBC shall\ncause NBC Multimedia to transfer to Xenon 2, and Xenon 2 shall accept, all of\nthe right, title and interest to the SNAP Units held by NBC Multimedia,\nincluding NBC Multimedia's rights pursuant to Section 7.3 and Section 7.4 of the\n ----------- ----------- \nSNAP LLC Agreement to increase the number of SNAP Units held by NBC Multimedia\nas provided in such agreement.\n\n \n 10\n\n (b) In connection with the transactions described in Section 2.3(a),\n -------------- \nNBC, NBC Multimedia and Xenon 2 shall execute all contribution, transfer,\nassumption and other agreements which counsel for NBC and Xoom determine are\nreasonably necessary to effect the transactions described therein. All of the\nassets transferred pursuant to Section 2.3(a) shall be transferred free and\n -------------- \nclear of all Liens (other than any Liens imposed by or on behalf of Xenon 2).\n\n (c) In exchange for the assignment and contribution of the SNAP Units\nset forth in Section 2.3(a), at the Closing and concurrently therewith, Xenon 2\n -------------- \nshall issue 11,417,569 shares of Class B Common Stock to NBC Multimedia;\n \nprovided, that in no event shall NBC and its Affiliates be issued shares of\n-------- \nCommon Stock of Xenon 2 that would result in their aggregate holding of such\nshares being equal to or greater than 50% of the outstanding shares of Common\nStock of Xenon 2 after giving effect to all of the issuances of such Common\nStock on the Closing Date.\n\n (d) Upon the original issuance of the shares of Class B Common Stock\nby Xenon 2 to NBC Multimedia pursuant to Section 2.2 and Section 2.3(c), and\n ----------- -------------- \nuntil such time as the same is no longer required hereunder or under the\napplicable requirements of the Securities Act or applicable state securities\nlaws, any certificate issued representing any such Class B Common Stock shall\nbear the following legend:\n\n \"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER\n THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE\n AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS (A) THEY\n ARE SO REGISTERED OR (B) AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND\n THE ISSUER IS FURNISHED WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY\n TO THE ISSUER TO THAT EFFECT. IN ADDITION, SUCH SHARES MAY ONLY BE\n TRANSFERRED PURSUANT TO THE PROVISIONS OF A GOVERNANCE AND INVESTOR RIGHTS\n AGREEMENT, DATED AS OF ______, 1999, AS AMENDED FROM TIME TO TIME, AMONG\n NATIONAL BROADCASTING COMPANY, INC. AND THE ISSUER COPIES OF WHICH ARE ON\n FILE AT THE PRINCIPAL OFFICE OF THE ISSUER.\"\n\n 2.4 Note Issuances. (a) Subject to the satisfaction or waiver of the\n -------------- \nconditions set forth in this Agreement, after the Effective Time and the\nconsummation of all of the transactions contemplated by Section 2.1, Section 2.2\n ----------- -----------\nand Section 2.3 of this Agreement, GE Investments Sub shall purchase the Xenon 2\n ----------- \nConvertible Note from Xenon 2 in exchange for $30 million and an assignment of\nthe NBC Note from GE Investments Sub to Xenon 2.\n\n (b) In connection with the transactions described in Section 2.4(a),\n -------------- \nNBC, GE Investments Sub and Xenon 2 shall execute all purchase, transfer and\nother agreements which counsel for NBC and Xoom determine are reasonably\nnecessary to effect the transactions described therein. Upon surrender of the\nNBC Note to NBC, NBC shall issue a new note payable to Xenon 2 having the terms\nset forth in Exhibit H.\n --------- \n\n \n 11\n\n 2.5 Required Consents. Notwithstanding anything to the contrary contained\n ----------------- \nin this Agreement, to the extent that the sale, conveyance, transfer, assignment\nor delivery or attempted sale, conveyance, transfer, assignment or delivery to\nNMC or Xenon 2 of any of the assets (including any assumed contract, license or\nother agreement) is prohibited by applicable law or would require any\ngovernmental or third-party authorization, approval, consent or waiver and such\nauthorization, approval, consent or waiver shall not have been obtained prior to\nthe Closing, this Agreement shall not constitute a sale, conveyance, transfer,\nassignment or delivery, or an attempted sale, conveyance, transfer, assignment\nor delivery thereof if any of the foregoing would constitute a breach of\napplicable law or the rights of any third party. Following the Closing, the\nparties shall use their reasonable commercial efforts, and shall cooperate with\neach other, to obtain promptly such authorizations, approvals, consents or\nwaivers; provided, however, that neither NBC, Xenon 2 nor any of their\n -------- ------- \nrespective Affiliates shall be required to pay any consideration therefor, other\nthan filing, recordation or similar fees payable to any governmental authority,\nwhich fees shall be paid by Xenon 2. Pending or in the absence of such\nauthorization, approval, consent or waiver, the parties shall use their\nreasonable commercial efforts to enter into reasonable and lawful arrangements\ndesigned to provide to Xenon 2 the benefits and liabilities of use of such\nassets from and after the Effective Time.\n\n 2.6 Tax Refunds. Notwithstanding anything herein to the contrary, Xenon 2\n ----------- \nshall be entitled to all refunds of Taxes with respect to the activities,\nproperties or employees of NMC or SNAP attributable to the period after the\nClosing Date.\n\n\n ARTICLE III\n\n THE MERGER\n\n 3.1 The Merger. Upon the terms and subject to the conditions set forth in\n ---------- \nthis Agreement, and in accordance with the Delaware General Corporation Law (the\n\"DGCL\"), NMC shall be merged (the \"Merger\") with and into Xenon 2 at the\n ---- ------ \nEffective Time. Following the Merger, the separate corporate existence of NMC\nshall cease and Xenon 2 shall continue as the surviving corporation (the\n \n\"Surviving Corporation\").\n---------------------- \n\n 3.2 Closing. Subject to the satisfaction or waiver (subject to applicable\n ------- \nlaw) of the conditions set forth in Article VII, the closing of the Merger and\n ----------- \nthe transactions contemplated by this Agreement (the \"Closing\") will take place\n ------- \non the second Business Day after all the conditions to Closing (other than\nconditions that, by their terms, cannot be satisfied until the Closing Date) set\nforth in Article VII shall have been satisfied or waived, unless this Agreement\n ----------- \nhas been theretofore terminated pursuant to its terms, unless another time or\ndate is agreed to in writing by the parties hereto (the actual time and date of\nthe Closing being referred to herein as the \"Closing Date\"). The Closing shall\n ------------ \nbe held at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New\nYork, New York, 10017, unless another place is agreed to in writing by the\nparties hereto.\n\n \n 12\n\n 3.3 Effective Time. As soon as practicable following the satisfaction of\n -------------- \nthe conditions set forth in Article VII, the parties shall (i) file a\n ----------- \ncertificate of merger (the \"Certificate of Merger\") executed in accordance with\n --------------------- \nthe relevant provisions of the DGCL and (ii) make all other filings or\nrecordings required under the DGCL. The Merger shall become effective at such\ntime as shall be specified in the Certificate of Merger (the date and time the\nMerger becomes effective being the \"Effective Time\").\n -------------- \n\n 3.4 Effects of the Merger. At and after the Effective Time, the Merger\n --------------------- \nwill have the effects set forth in the DGCL. Without limiting the generality of\nthe foregoing, and subject thereto, at the Effective Time all the property,\nrights, privileges, powers and franchises of NMC and Xenon 2 shall be vested in\nthe Surviving Corporation, and all debts, liabilities and duties of NMC and\nXenon 2 shall become the debts, liabilities and duties of the Surviving\nCorporation.\n\n 3.5 Certificates of Incorporation. Xoom shall cause the certificate of\n ----------------------------- \nincorporation of Xenon 2 to be amended and restated immediately prior to the\nEffective Time to change the name of Xenon 2 to \"NBC Internet, Inc.\" and so as\nto otherwise read in its entirety as set forth in Exhibit 3.5, with such changes\n ----------- \ntherein as NBC and Xenon 2 may agree upon prior to the Effective Time, and such\namended and restated certificate of incorporation shall be the certificate of\nincorporation of the Surviving Corporation until thereafter changed or amended\nas provided therein or by applicable law.\n\n 3.6 By-Laws. Xoom shall cause the by-laws of Xenon 2 to be amended and\n ------- \nrestated effective prior to the Effective Time so as to read in their entirety\nas set forth in Exhibit 3.6, with such changes therein as NBC and Xenon 2 may\n ----------- \nagree upon prior to the Effective Time, and such amended and restated by-laws\nshall be the by-laws of the Surviving Corporation until thereafter changed or\namended as provided therein or by applicable law.\n\n 3.7 Officers and Directors of Surviving Corporation and Xenon 2. The\n ----------------------------------------------------------- \nofficers and directors of the Surviving Corporation shall be as provided in\n \nSchedule 3.7, which individuals will serve as officers and directors of the\n------------ \nSurviving Corporation until the earlier of their resignation or removal or\notherwise ceasing to be an officer or director or until their respective\nsuccessors are duly elected and qualified.\n\n 3.8 Effect on Capital Stock. (a) At the Effective Time by virtue of the\n ----------------------- \nMerger and without any action on the part of the holder thereof, each share of\ncommon stock, par value $0.0001, of NMC (the \"NMC Common Stock\") issued and\n ---------------- \noutstanding immediately prior to the Effective Time (other than shares of NMC\nCommon Stock held by NMC, all of which shall be canceled as provided in Section\n -------\n3.8(c)) shall be converted into one share of Class B common stock, par value\n------ \n$0.0001 per share, of the Surviving Corporation (the \"Merger Consideration\") and\n -------------------- \nall shares of common stock of the Surviving Corporation issued and outstanding\nat the Effective Time shall remain outstanding after the Merger.\n\n (b) As a result of the Merger and without any action on the part of\nthe holders thereof, at the Effective Time, all shares of NMC Common Stock shall\nbe canceled and shall \n\n \n 13\n\ncease to exist, and each holder of a certificate which immediately prior to the\nEffective Time represented any such shares of NMC Common Stock (a \"Certificate\")\n ----------- \nshall thereafter cease to have any rights with respect to such shares of NMC\nCommon Stock, except as provided herein or by law.\n\n (c) Each share of NMC Common Stock held by NMC at the Effective Time\nshall, by virtue of the Merger, cease to be outstanding and shall be canceled\nand no stock of Xenon 2 or other consideration shall be delivered in exchange\ntherefor.\n\n (d) Upon the original issuance of the shares of Class B Common Stock\nby Xenon 2 in connection with the Merger, and until such time as the same is no\nlonger required hereunder or under the applicable requirements of the Securities\nAct or applicable state securities laws, any certificate issued representing any\nsuch Class B Common Stock shall bear the following legend:\n\n \"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER\n THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE\n AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS (A) THEY\n ARE SO REGISTERED OR (B) AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND\n THE ISSUER IS FURNISHED WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY\n TO THE ISSUER TO THAT EFFECT. IN ADDITION, SUCH SHARES MAY ONLY BE\n TRANSFERRED PURSUANT TO THE PROVISIONS OF A GOVERNANCE AND INVESTOR RIGHTS\n AGREEMENT, DATED AS OF ________, 1999, AS AMENDED FROM TIME TO TIME AMONG\n NATIONAL BROADCASTING COMPANY, INC. AND THE ISSUER COPIES OF WHICH ARE ON\n FILE AT THE PRINCIPAL OFFICE OF THE ISSUER.\"\n\n 3.9 Exchange Procedures. As soon as reasonably practicable after the\n ------------------- \nEffective Time, NBC shall cause NBC Multimedia to deliver its Certificate to\nXenon 2 and NBC Multimedia shall be entitled to receive in exchange a\ncertificate representing, in the aggregate, the number of shares into which the\nNMC Common Stock was converted pursuant to Section 3.8(a).\n -------------- \n\n 3.10 No Further Ownership Rights in NMC Common Stock. All shares of Class\n ----------------------------------------------- \nB Common Stock issued upon conversion of NMC Common Stock in accordance with the\nterms of this Article III shall be deemed to have been issued in full\n ----------- \nsatisfaction of all rights pertaining to the shares of NMC Common Stock formerly\nrepresented thereby.\n\n 3.11 Further Assurances. At and after the Effective Time, the officers and\n ------------------ \ndirectors of the Surviving Corporation will be authorized to execute and\ndeliver, in the name and on behalf of NMC or Xenon 2, any deeds, bills of sale,\nassignments or assurances and to take and do, in the name and on behalf of NMC\nor Xenon 2, any other actions and things to vest, perfect or confirm of record\nor otherwise in the Surviving Corporation any and all right, title and interest\nin, to and \n\n \n 14\n\nunder any of the rights, properties or assets acquired or to be acquired by the\nSurviving Corporation as a result of, or in connection with, the Merger.\n\n 3.12 Federal Income Tax Consequences. For federal income tax purposes, it\n ------------------------------- \nis intended that the transfers described in Section 2.1, Section 2.2 and Section\n ----------- ----------- -------\n2.3 and the Merger qualify as a contribution to Xenon 2 qualifying under Section\n--- \n351 of the Code.\n\n\n ARTICLE IV\n\n REPRESENTATIONS AND WARRANTIES OF THE PARTIES\n ---------------------------------------------\n\n 4.1 Representations and Warranties of NBC. NBC represents and warrants to\n ------------------------------------- \nXoom and Xenon 2 as follows, provided that none of the representations or\n -------- \nwarranties contained in this Section 4.1 are made with respect to SNAP, its\n ----------- \nassets, Liabilities or the business conducted thereby except paragraphs (a), (b)\nand (c) and the second sentence of paragraph (g) to the extent related to the\nownership or transfer of the SNAP Units:\n\n (a) Due Organization, Power and Good Standing. NBC, NMC and each of\n ----------------------------------------- \nNeon's Subsidiaries that is a party to an Implementing Agreement is duly\norganized, validly existing and in good standing under the laws of its\njurisdiction of organization, and has the requisite power and authority to own,\nlease and operate its properties and to conduct its business as now conducted by\nit. NBC, NMC and each of Neon's Subsidiaries that is a party to an Implementing\nAgreement has all requisite power and authority to enter into this Agreement and\nthe Implementing Agreements to which it is a party and to perform its\nobligations hereunder and thereunder. NBC, NMC and each of Neon's Subsidiaries\nthat is a party to an Implementing Agreement is qualified to do business and is\nin good standing in all jurisdictions in which it conducts its business, except\nwhere the failure to do so would not, individually or in the aggregate, taken as\na whole, have a Material Adverse Effect.\n\n (b) Authorization and Validity of Agreements. The execution, delivery\n ---------------------------------------- \nand performance by NBC and its Subsidiaries of this Agreement and of the\nImplementing Agreements to which it or its Subsidiaries is a party and the\nconsummation by NBC and its Subsidiaries of the transactions contemplated hereby\nand thereby have been duly authorized by all necessary corporate or other\ngovernance action (including any required approval from NBC Parent) on the part\nof NBC and its Subsidiaries. Each of this Agreement, the Option Agreement and\nthe Voting Agreement has been, and each of the Implementing Agreements to which\nNBC or any of its Subsidiaries is a party will on the Closing Date be, duly\nexecuted and delivered by NBC and its Subsidiaries and constitutes or, in the\ncase of the Implementing Agreements, upon execution thereof will constitute, a\nvalid and legally binding obligation of NBC and its Subsidiaries, enforceable\nagainst each in accordance with its terms.\n\n (c) Governmental Approvals; Consents. Except as described in Schedule\n -------------------------------- --------\n4.1(c), the execution, delivery and performance of this Agreement, the Option\n------ \nAgreement and the Implementing Agreements by NBC and its Subsidiaries and the\nconsummation by such Persons \n\n \n 15\n\nof the transactions contemplated hereby and thereby will not (i) conflict with\nor result in a breach of any provision of the certificate of incorporation or\nbylaws or other governing documents of NBC or its Subsidiaries; (ii) require any\nconsent, approval, authorization or permit of, or filing with or notification\nto, any Governmental Authority; (iii) require the consent or approval of any\nPerson (other than a Governmental Authority or any approvals required under\nSection 4.1(b)) or violate or conflict with, or result in a breach of any\n-------------- \nprovision of, constitute a default (or an event which with notice or lapse of\ntime or both would become a default) or give to any third party any right of\ntermination, cancellation, amendment or acceleration under, or result in the\ncreation of a Lien on any of the NBC Multimedia Assets under, any of the terms,\nconditions or provisions of any contract or license to which NBC or any of its\nSubsidiaries is a party or by which it or its assets or property are bound; or\n(iv) violate or conflict with any order, writ, injunction, decree, statute, rule\nor regulation applicable to NBC or any of its Subsidiaries; other than any\nconsents, approvals, authorizations and permits the failure of which to obtain\nand any violations, conflicts, breaches defaults and other matters set forth\npursuant to clauses (ii), (iii) and (iv) above which, individually or in the\naggregate, would not reasonably be expected to have a Material Adverse Effect.\n\n (d) Certain Fees. Neither NBC or any of its Subsidiaries nor the\n ------------ \nofficers, directors or employees, thereof have employed any broker or finder or\nincurred any other Liability for any brokerage fees, commissions or finders'\nfees in connection with the transactions contemplated hereby; except that NBC\nhas employed BT Alex. Brown Incorporated whose fees and expenses will be paid in\naccordance with Section 10.5 if the transactions contemplated by this Agreement\n ------------ \nare consummated and will otherwise be paid by NBC.\n\n (e) Financial Information, Liabilities. NBC has provided Xenon 2 with\n ---------------------------------- \ncertain historical financial information relating to the NBC Multimedia\nBusinesses set forth on Schedule 4.1(e) hereto (the \"Financial Information\").\n --------------- --------------------- \nThe Financial Information has been prepared in accordance with the accounting\nprinciples and procedures set forth on Schedule 4.1(e) and is true and correct\n --------------- \nin all material respects. All of the NBC Multimedia Liabilities primarily\nrelate to the NBC Multimedia Businesses.\n\n (f) Absence of Certain Changes or Events. Except as disclosed on\n ------------------------------------ \nSchedule 4.1(f), since December 31, 1998, NBC and its Subsidiaries have\n--------------- \nconducted the NBC Multimedia Businesses in all material respects only in the\nordinary course, consistent with past practice and there has not been (i) any\nmaterial adverse change in the assets, liabilities, business, results of\noperations or financial condition of the NBC Multimedia Businesses or (ii)\nexcept in the ordinary course of business consistent with past practice and\nexcept for such matters that would not reasonably be expected to have a Material\nAdverse Effect, any damage, destruction, loss, conversion, condemnation or\ntaking by eminent domain related to any material NBC Multimedia Asset. In\naddition, except as disclosed on Schedule 4.1(f), from December 31, 1998 to the\n --------------- \ndate hereof, neither NBC nor any of its Subsidiaries has (A) acquired or\ndisposed of any material assets of an NBC Multimedia Business or entered into\nany agreement or other arrangement for any such acquisition or disposition or\n(B) relinquished, forgiven or canceled any material debts or claims with respect\nto an NBC Multimedia Business.\n \n\n \n 16\n\n (g) Title to Properties; Absence of Liens. NBC or its Subsidiaries\n ------------------------------------- \nhave, and at the Closing, NMC will acquire, good title to (or, in the case of\nreal estate or equipment leases, a valid lease to) all properties, assets and\nother rights included in the NBC Multimedia Assets, free and clear of all Liens\nexcept for Permitted Liens and Liens described on Schedule 2.1. NBC or its\nSubsidiaries have, and at the Closing, Xenon 2 will acquire, good title to all\nof the SNAP Units held by NBC and its Subsidiaries, free and clear of all Liens\n(other than Liens created, imposed or granted by Xenon 2 and as set forth in the\nSNAP LLC Agreement). Assuming the consummation of the transactions contemplated\nby the Xenon 2 Merger Agreement in accordance with the terms and conditions\nthereof, at the Closing, Xenon 2 will acquire good title to all of the SNAP\nUnits.\n\n (h) Properties, Contracts, Permits and Other Data. Except as\n --------------------------------------------- \nspecified in Schedule 4.1(h) hereto, all rights, licenses, leases,\n --------------- \nregistrations, applications, contracts, commitments and other agreements of NBC\nand its Subsidiaries with respect to the NBC Multimedia Businesses or by which\nthe NBC Multimedia Assets are bound are in full force and effect and are valid\nand enforceable in accordance with their respective terms except for such\nfailures to be in full force and effect and valid and enforceable that would\nnot, individually or in the aggregate, have a Material Adverse Effect. No NBC\nMultimedia Business is in breach or default in the performance of any obligation\nthereunder and no event has occurred or has failed to occur whereby any of the\nother parties thereto have been or will be released therefrom or will be\nentitled to refuse to perform thereunder, the enforcement of which would have,\neither individually or in the aggregate, a Material Adverse Effect.\n\n (i) Legal Proceedings. Except as described in Schedule 4.1(i), there\n ----------------- --------------- \nis no litigation, proceeding or governmental investigation to which NBC or its\nSubsidiaries is a party pending or, to the best Knowledge of NBC, threatened\nagainst it or its Subsidiaries which, either individually or in the aggregate,\nwould reasonably be expected to result in a Material Adverse Effect or which, as\nof May 9, 1999, seeks to restrain or enjoin the consummation of any of the\ntransactions contemplated hereby. NBC and its Subsidiaries are not party to,\nnor are the NBC Multimedia Assets subject to, any judgment, writ, decree,\ninjunction or order entered by any court or governmental authority (domestic or\nforeign) that, individually or in the aggregate, would reasonably be expected to\nhave a Material Adverse Effect.\n\n (j) Labor Controversies. Except as set forth on Schedule 4.1(j), (i)\n ------------------- --------------- \nthere have been no labor strikes, slow-downs, work stoppages, lock-outs or other\nmaterial labor controversies or disputes during the past two years, nor is any\nsuch strike, slow-down, work stoppage or other material labor controversy or\ndispute pending or, to the best Knowledge of NBC, threatened, in each case with\nrespect to the current or former employees of the NBC Multimedia Businesses,\n(ii) none of the NBC Multimedia Businesses are a party to any labor contract,\ncollective bargaining agreement, contract, letter of understanding or, to Neon's\nKnowledge, any other agreement, formal or informal, with any labor union or\norganization, nor are any of the NBC Multimedia Businesses' employees\nrepresented by any labor union or organization, and (iii) no NBC Multimedia\nBusiness has closed any facility, effectuated any layoffs of employees or\nimplemented any early retirement, separation or window program within \n\n \n 17\n\nthe past two years nor has any NBC Multimedia Business planned or announced any\nsuch action or program for the future.\n\n (k) Intellectual Property. NBC or its Subsidiaries own or are\n --------------------- \nlicensed or otherwise have the right to use, all Intellectual Property currently\nused in the NBC Multimedia Businesses (the \"NBC Multimedia Business Intellectual\n ------------------------------------\nProperty\"), except as would not, individually or in the aggregate, have a\n-------- \nMaterial Adverse Effect. No NBC Multimedia Business has infringed upon or is in\nconflict with the Intellectual Property of any third party nor has any NBC\nMultimedia Business received any written notice of any claim that any NBC\nMultimedia Business has infringed upon or is in conflict with any Intellectual\nProperty of any third party, except as would not, individually or in the\naggregate, have a Material Adverse Effect. Except as set forth on Schedule\n --------\n4.1(k), none of the rights of NBC or its Subsidiaries to the NBC Multimedia\n------ \nBusiness Intellectual Property will be impaired in any way by the transactions\nprovided for herein, and all of the rights of NBC and its Subsidiaries to the\nNBC Multimedia Business Intellectual Property will be fully enforceable by NMC\nafter the Closing Date to the same extent as such rights would have been\nenforceable by NBC or its Subsidiaries before the Closing, without the consent\nor agreement of any other party other than any consents and agreements the\nfailure of which to obtain, individually or in the aggregate, would not have a\nMaterial Adverse Effect. There have been no claims (whether private or\ngovernmental) against NBC or its Subsidiaries asserting the invalidity or\nunenforceability of its ownership, license or other right to use any of the\nregistered NBC Multimedia Business Intellectual Property.\n\n (l) Government Licenses, Permits, Etc. Except as set forth on\n --------------------------------- \nSchedule 4.1(l), NBC and its Subsidiaries have all licenses, permits, consents,\n--------------- \napprovals, authorizations, qualifications and orders of Governmental Authorities\nrequired for the conduct of each NBC Multimedia Business as presently conducted,\nexcept where failure would not, individually or in the aggregate, have a\nMaterial Adverse Effect.\n\n (m) Conduct of Business in Compliance with Regulatory and Contractual\n -----------------------------------------------------------------\nRequirements. NBC and its Subsidiaries have complied with all applicable laws,\n------------ \nordinances, regulations or orders or other requirements of any Governmental\nAuthority applicable to the NBC Multimedia Businesses, including, without\nlimitation, all rules, regulations and administrative orders relating to anti-\ncompetitive practices, discrimination, employment, health and safety, except\nwhere the failure to be in such compliance would not have, either individually\nor in the aggregate, a Material Adverse Effect.\n\n (n) Environmental Matters. Except as set forth on Schedule 4.1(n) and\n --------------------- --------------- \nexcept for matters that, individually or in the aggregate, would not have a\nMaterial Adverse Effect, (i) NBC and its Subsidiaries comply and have complied\nwith all Environmental Laws applicable to the NBC Multimedia Businesses, and\npossess and comply with and have possessed and complied with all Environmental\nPermits for each NBC Multimedia Business; (ii) there are and have been no\nMaterials of Environmental Concern, or other conditions, at any property owned\nor leased by NBC or any of its Subsidiaries and included in the NBC Multimedia\nAssets that could give rise to any liability under any Environmental Law or\nresult in costs arising out of any Environmental Law; (iii) no judicial,\nadministrative, or arbitral proceeding (including any notice of violation or\n\n \n 18\n\nalleged violation) under any Environmental Law to which any NBC or any of its\nSubsidiaries is, or to the Knowledge of NBC and its Subsidiaries will be, named\nas a party is pending or, to the Knowledge of NBC, threatened, with respect to\nany NBC Multimedia Business nor is any NBC Multimedia Business the subject of\nany investigation in connection with any such proceeding or potential\nproceeding; (iv) there are no past, present, or anticipated future events,\nconditions, circumstances, practices, plans, or legal requirements that could be\nexpected to prevent, or materially increase the burden on any NBC Multimedia\nBusiness of complying with applicable Environmental Laws or of obtaining,\nrenewing, or complying with all Environmental Permits required under such laws;\nand (v) NBC has provided to the other parties true and complete copies of all\nEnvironmental Reports relating to the NBC Multimedia Businesses in the\npossession or control of NBC and its Subsidiaries.\n\n (o) Employee Benefit Matters. (i) Neither NBC nor any of its\n ------------------------ \nSubsidiaries nor any Member of the Controlled Group of which it is a member has\n(A) engaged in, or is a successor or parent corporation to an entity that has\nengaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or (B)\nincurred, or could reasonably be expected to incur, any liability under (I)\nTitle IV of ERISA arising in connection with the termination of, or a complete\nor partial withdrawal from, any plan covered or previously covered by Title IV\nof ERISA or (II) Section 4971 of the Code that in either case could become a\nliability of Xenon 2 or any Subsidiary after the Closing Date. The assets of\nNBC and all of its Subsidiaries are not now, nor will they after the passage of\ntime be, subject to any lien imposed under Code Section 412(n) by reason of a\nfailure of any of NBC or any Subsidiary or any Member of the Controlled Group\nof which it is a member to make timely installments or other payments required\nunder Code Section 412. Schedule 6.7(a) sets forth (i) the names and salaries\n --------------- \nof each employee to whom NMC shall offer employment pursuant to Section 6.7 and\n ----------- \n(ii) any employment agreements between such employees and NBC or any of its\nSubsidiaries.\n \n (ii) Except as provided on Schedule 4.1(o), no plan exists with\n --------------- \nrespect to the Transferred Employees that could result in the payment to them of\nany money or other property or accelerate or provide any other rights or\nbenefits to them as a result of the transaction contemplated by this Agreement,\nwhether or not such payment would constitute a parachute payment within the\nmeaning of Code Section 280G.\n\n (p) Absence of Certain Business Practices. No officer, employee or\n ------------------------------------- \nagent of any NBC Multimedia Business, nor any other Person acting on behalf of\nany NBC Multimedia Business, has, directly or indirectly, within the past five\nyears given or agreed to give any gift or similar benefit to any customer,\nsupplier, governmental employee or other Person or entity who is or may be in a\nposition to help or hinder any NBC Multimedia Business (or assist such NBC\nMultimedia Business in connection with any actual or proposed transaction) which\n(x) subjects any party or any of their respective Subsidiaries, to any damage or\npenalty in any civil, criminal or governmental litigation or proceeding, (y) if\nnot given in the past, would have had a Material Adverse Effect or (z) if not\ncontinued in the future, would have a Material Adverse Effect or which might\nsubject any party or any of their respective Subsidiaries, to suit or penalty in\nany private or governmental litigation or proceeding.\n\n \n 19\n\n (q) Entire Business. Except as set forth in Schedule 4.1(q), the NBC\n --------------- --------------- \nMultimedia Assets, together with the License Agreement, will enable Xenon 2 to\nconduct the NBC Multimedia Businesses after the Effective Time in substantially\nthe same manner as they are currently being conducted.\n\n (r) Tax Matters. (i) NBC and each of its Subsidiaries have timely\n ----------- \nfiled (or have had timely filed on their behalf) or will timely file or cause to\nbe timely filed, all Tax Returns required by applicable law to be filed by any\nof them prior to the Effective Time with respect to the NBC Multimedia\nBusinesses or the assets, employees or businesses of or to be contributed by NBC\nor its Affiliates to CNBC.com. All such Tax Returns are or will be true,\ncomplete and correct in all material respects. There are no outstanding\nagreements or waivers extending the statutory period of limitation applicable to\nany of such Tax Returns and neither NBC nor any of its Subsidiaries has\nrequested any extension of time within which to file any material Tax Return\nwith respect to the NBC Multimedia Businesses or the assets, employees or\nbusinesses of or to be contributed by NBC or its Affiliates to CNBC.com, which\nreturn has not yet been filed. There is no pending claim by any authority of a\njurisdiction where NBC or any of its Subsidiaries has not filed Tax Returns that\nNBC or such Subsidiary is or may have been subject to taxation by that\njurisdiction with respect to the NBC Multimedia Businesses or the assets,\nemployees or businesses of or to be contributed by NBC or its Affiliates to\nCNBC.com. All Taxes required to be withheld by NBC or its Affiliates with\nrespect to the NBC Multimedia Businesses or CNBC.com or their activities,\nproperties, employees or independent contractors have been withheld and paid\nover to the appropriate Tax Authority.\n\n (ii) NBC and each of its Subsidiaries have paid (or have had paid on\ntheir behalf), or where payment is not yet due, have established (or have had\nestablished on their behalf and for their sole benefit and recourse), or will\nestablish or cause to be established on or before the Effective Time, an\nadequate accrual for the payment of, all Taxes due with respect to any period\nbeginning prior to the Effective Time with respect to the NBC Multimedia\nBusinesses or the assets, employees or businesses of or to be contributed by NBC\nor its Affiliates to CNBC.com. No deficiency or adjustment for any Taxes has\nbeen threatened, proposed, asserted or assessed against NBC or any of its\nSubsidiaries with respect to the NBC Multimedia Businesses or the assets,\nemployees or businesses of or to be contributed by NBC or its Affiliates to\nCNBC.com. There are no liens for Taxes upon the assets of NBC or any of its\nSubsidiaries, except for liens for current Taxes not yet due, with respect to\nthe NBC Multimedia Businesses or the assets, employees or businesses of or to be\ncontributed by NBC or its Affiliates to CNBC.com.\n\n (iii) With respect to the NBC Multimedia Businesses or the assets,\nemployees or businesses of or to be contributed by NBC or its Affiliates to\nCNBC, neither NBC nor any of its Subsidiaries is required to include in income\nany adjustment pursuant to Section 481(a) of the Code or any similar applicable\nprovision by reason of a voluntary change in accounting method initiated by NBC\nor any of its Subsidiaries, and neither the Internal Revenue Service nor any\ntaxing authority has proposed in writing any such adjustment or change in\naccounting method. Neither NBC nor any of its Subsidiaries has received a tax\nruling or entered into a closing agreement with any taxing authority that would\nhave a Material Adverse Effect \n\n \n 20\n\nupon the NBC Multimedia Businesses or the assets, employees or businesses of or\nto be contributed by NBC or its Affiliates to CNBC.\n\n (iv) With respect to the NBC Multimedia Business, neither NBC nor any\nof its Subsidiaries has made any payments, is obligated to make any payments, or\nis a party to any agreement, in each case, that could obligate it to make any\npayments that would not be deductible pursuant to Section 280G of the Code.\n\n (v) None of the NBC Multimedia Businesses or the business of\nCNBC.com has a \"permanent establishment,\" as defined in any applicable Tax\ntreaty or convention of the United States of America, or fixed place of business\nin any foreign country. NBC and its Affiliates are in compliance with the terms\nand conditions of any applicable tax exemptions, agreements or orders of any\nforeign government to which it may be subject or which it may have claimed with\nrespect to the NBC Multimedia Businesses or the assets, employees or businesses\nof or to be contributed by NBC or its Affiliates to CNBC.com, and the\ntransactions contemplated by this Agreement will not have any adverse effect on\nsuch compliance.\n\n (vi) CNBC.com shall initially be treated as a partnership for\nfederal income tax purposes.\n\n (s) Accredited Investor. NBC is an \"accredited investor\" within the\n ------------------- \nmeaning of Rule 501 of Regulation D under the Securities Act. NBC (i) is\nacquiring the Class B Common Stock for investment for its own account and not\nwith a view to, or for sale in connection with, any distribution thereof, in\nviolation of the Securities Act; (ii) has had an opportunity to ask questions of\nthe officers and directors of, and has had access to information concerning,\nXenon 2 and its Subsidiaries; (iii) has knowledge, sophistication and experience\nin business and financial matters and risks of such investment; (iv) is able to\nbear the economic risk of such investment; and (v) is able to afford a complete\nloss of such investment.\n\n (t) Year 2000 Compliance. With respect to the NBC Multimedia\n -------------------- \nBusinesses, NBC has adopted and implemented a commercially reasonable plan to\nprovide (x) that the change of the year from 1999 to the year 2000 will not have\na Material Adverse Effect and (y) that the impacts of such change on the venders\nand customers of the NBC Multimedia Businesses will not have a Material Adverse\nEffect. In Neon's reasonable best estimate, no expenditures materially in\nexcess of currently budgeted items previously disclosed to Xenon 2 will be\nrequired in order to cause the information and business systems of the NBC\nMultimedia Businesses to operate properly following the change of the year 1999\nto the year 2000. NBC reasonably expects any material issues related to such\nchange of the year will be resolved in accordance with the timetable set forth\nin such plan (and in any event on a timely basis in order to be resolved before\nthe year 2000). Between the date of this Agreement and the Effective Time, NBC\nshall continue to use commercially reasonable efforts to implement such plan.\n\n (u) NMC. The authorized capital stock of NMC consists of 100 shares\n --- \nof common stock, par value $0.0001 per share, of which 100 shares have been\nissued and are outstanding and held by NBC Multimedia as of the date hereof.\nNMC has not conducted any \n\n \n 21\n\nactivities other than in connection with its organization, the negotiation and\nexecution of this Agreement and the consummation of the transactions\ncontemplated hereby. Prior to the Closing Date, NMC's certificate of\nincorporation will be amended to provide for an authorized capital stock\nsufficient to permit NMC to issue shares of its common stock as described in\nSection 2.2(c).\n-------------- \n\n (v) No Other Liabilities. Other than the NBC Multimedia Liabilities,\n -------------------- \nthere are no Liabilities of NBC or its Subsidiaries that will be transferred or\nassigned to, or assumed by, NMC in connection with the transactions set forth in\n \nSection 2.2(a) or as to which NMC or Xenon 2 could be liable.\n-------------- \n\n 4.2 Representations and Warranties with respect to SNAP. NBC represents\n --------------------------------------------------- \nand warrants to Xenon 2 as follows:\n\n (a) Due Organization, Power and Good Standing. SNAP is duly organized,\n ----------------------------------------- \nvalidly existing and in good standing under the laws of its jurisdiction of\norganization, and has the requisite power and authority to own, lease and\noperate its properties and to conduct its business as now conducted by it. SNAP\nis qualified to do business and is in good standing in all jurisdictions in\nwhich it conducts its business, except where the failure to do so would not,\nindividually or in the aggregate, taken as a whole, have a Material Adverse\nEffect. SNAP has no Subsidiaries other than SNAP International LLC which has\nnot commenced business operations and has no material assets or liabilities.\n\n (b) Authorization and Validity of Agreement. The transfer of the\n --------------------------------------- \ninterests in SNAP pursuant hereto have been duly authorized by all necessary\naction on the part of SNAP.\n\n (c) Governmental Approvals; Consents. Except as described in Schedule\n -------------------------------- --------\n4.2(c), the execution, delivery and performance by NBC of this Agreement and the\n------ \nImplementing Agreements to which it is a party and the consummation by NBC of\nthe transactions contemplated hereby and thereby will not (i) conflict with or\nresult in a breach of any provision of the SNAP LLC Agreement; (ii) require any\nconsent, approval, authorization or permit of, or filing with, or notification\nto, any Governmental Authority; (iii) require the consent or approval of any\nPerson (other than a Governmental Authority) or violate or conflict with, or\nresult in a breach of any provision of, constitute a default (or an event which\nwith notice or lapse of time or both would become a default) or give to any\nthird party any right of termination, cancellation, amendment or acceleration\nunder, or result in the creation of a Lien on any of the assets of SNAP under\nany of the terms, conditions or provisions of any contract or license to which\nSNAP is a party or by which it or its assets or property are bound; or (iv)\nviolate or conflict with any order, writ, injunction, decree, statute, rule or\nregulation applicable to SNAP; other than any consents, approvals,\nauthorizations and permits the failure of which to obtain and any violations,\nconflicts, breaches defaults and other matters set forth pursuant to clauses\n(ii), (iii) and (iv) above which, individually or in the aggregate, would not\nreasonably be expected to have a Material Adverse Effect.\n\n \n 22\n\n (d) Certain Fees. Neither SNAP nor any of the officers, directors or\n ------------ \nemployees, thereof has employed any broker or finder or incurred any other\nLiability for any brokerage fees, commissions or finders' fees in connection\nwith the transactions contemplated hereby except that SNAP has employed of BT\nAlex. Brown Incorporated whose fees and expenses will be paid in accordance with\n \nSection 10.5 of the transactions contemplated by this Agreement are consummated\n------------ \nand otherwise will be paid by SNAP.\n\n (e) Equity Interests. As of the date hereof, the outstanding equity\n ---------------- \ninterests in SNAP and the holders thereof are set forth on Schedule 4.2(e)\n ---------------\nhereto. All outstanding SNAP Units are duly authorized, validly issued, fully\npaid and non-assessable and are not subject to any preemptive rights except as\nset forth in the SNAP LLC Agreement and have been issued in compliance with\nfederal and state securities laws. There are no declared or accrued unpaid\ndistributions with respect to any SNAP Units. The limited liability company\ninterests of SNAP International LLC have been duly authorized and issued, and\nare fully paid and non-assessable and are owned by SNAP free and clear of all\nLiens. Except for the capital stock of its Subsidiaries, SNAP does not own,\ndirectly or indirectly, more than 10% of the capital stock or other ownership\ninterest in any Person and to the extent it owns less than 10% of the capital\nstock or other ownership interest in any Person, such interests in the aggregate\ndo not constitute a material part of SNAP's assets. Except as set forth on\n \nSchedule 4.2(e) hereto or as provided under the terms of this Agreement, no SNAP\n--------------- \nUnits are reserved for issuance, and there are no contracts, agreements,\ncommitments or arrangements obligating SNAP to (i) offer, sell, issue or grant\nany equity interests in, or any options, warrants or rights of any kind to\nacquire any equity interests in, or any other securities that are convertible\ninto or exchangeable for any equity interests in SNAP or (ii) to redeem,\npurchase or acquire, or offer to purchase or acquire, any outstanding equity\ninterests in or any outstanding options, warrants or rights of any kind to\nacquire any equity interests in, or any other outstanding securities that are\nconvertible into or exchangeable for any equity interests in SNAP. At the\nEffective Time, after giving effect to the transactions contemplated by the\nXenon 2 Merger Agreement and this Agreement, Xenon 2 will own all of the\noutstanding SNAP Units, other than SNAP Units issued pursuant to the exercise of\nSNAP Options, free and clear of all Liens.\n\n (f) Financial Information, Liabilities. The unaudited balance sheet\n ---------------------------------- \nfor SNAP as at December 31, 1998 (the \"SNAP Balance Sheet\") and the related\n ------------------ \nunaudited income statement for the six months ending December 31, 1998, copies\nof which are attached hereto as Schedule 4.2(f) present fairly in all material\n --------------- \nrespects the financial condition and results of operations of SNAP as at\nDecember 31, 1998 and for the period then ended subject to normal year-end audit\nadjustments and financial statement footnote disclosure. Except as set forth on\nSchedule 4.2(g), except as and to the extent disclosed in the SNAP Balance\n--------------- \nSheet, and except for liabilities incurred in connection with the transactions\ncontemplated by this Agreement and the Implementing Agreements, there are no\nliabilities, whether absolute, accrued, contingent or otherwise, of SNAP, that\nwould be required to be reflected on, or reserved against, in such consolidated\nbalance sheet of SNAP, except for (x) liabilities which, singly or in the\naggregate, would not have a Material Adverse Effect and (y) liabilities incurred\nsubsequent to the date of such balance sheet by SNAP in the ordinary course of\nbusiness consistent with past practice.\n\n \n 23\n\n (g) Absence of Certain Changes or Events. Except as disclosed on\n ------------------------------------ \nSchedule 4.2(g) since December 31, 1998, SNAP has conducted its business in all\n--------------- \nmaterial respects only in the ordinary course consistent with past practice and\nthere has not been (i) any material adverse change in the assets, liabilities,\nbusiness, results of operations or financial condition of SNAP, or (ii) except\nin the ordinary course of business consistent with past practice and except for\nsuch matters that would not reasonably be expected to have a Material Adverse\nEffect, any damage, destruction, loss, conversion, condemnation or taking by\neminent domain related to any of its material assets. In addition, except as\ndisclosed on Schedule 4.2(g), from December 31, 1998 to the date hereof, SNAP\n --------------- \nhas not (A) acquired or disposed of any material assets or entered into any\nagreement or other arrangement for any such acquisition or disposition or (B)\nrelinquished, forgiven or canceled any material debts or claims.\n\n (h) Title to Properties; Absence of Liens. Except as disclosed on\n ------------------------------------- \nSchedule 4.2(h), SNAP has good title to (or, in the case of real estate or\n--------------- \nequipment leases, a valid lease to) all of its properties, assets and other\nrights, free and clear of all Liens except for Permitted Liens and such assets\nwill enable Xenon 2 to conduct the business of SNAP after the Effective Time in\nsubstantially the same manner as it is currently being conducted.\n\n (i) Properties, Contracts, Permits and Other Data. Except as\n --------------------------------------------- \nspecified in Schedule 4.2(i) hereto, all rights, licenses, leases,\n --------------- \nregistrations, applications, contracts, commitments and other agreements of SNAP\nor by which SNAP is bound are in full force and effect and are valid and\nenforceable in accordance with their respective terms except for such failures\nto be in full force and effect and valid and enforceable that would not,\nindividually or in the aggregate, have a Material Adverse Effect. SNAP is not\nin breach or default in the performance of any obligation thereunder and no\nevent has occurred or has failed to occur whereby any of the other parties\nthereto have been or will be released therefrom or will be entitled to refuse to\nperform thereunder, the enforcement of which would have, either individually or\nin the aggregate, a Material Adverse Effect. SNAP has provided to Xoom complete\nand accurate copies of SNAP's current annual budget and operating plan (the\n\"SNAP Budget\").\n------------ \n\n (j) Legal Proceedings. Except as described in Schedule 4.2(j), there\n ----------------- --------------- \nis no litigation, proceeding or governmental investigation to which SNAP is a\nparty pending or, to the best Knowledge of SNAP, threatened against it or its\nassets which, either individually or in the aggregate, would reasonably be\nexpected to result in a Material Adverse Effect or which, as of May 9, 1999,\nseeks to restrain or enjoin the consummation of any of the transactions\ncontemplated hereby. SNAP is not a party to nor are its assets subject to any\njudgment, writ, decree, injunction or order entered by any court or governmental\nauthority (domestic or foreign) that, individually or in the aggregate, would\nreasonably be expected to have a Material Adverse Effect.\n\n (k) Labor Controversies. Except as set forth on Schedule 4.2(k), (i)\n ------------------- --------------- \nthere have been no labor strikes, slow-downs, work stoppages, lock-outs or other\nmaterial labor controversies or disputes during the past two years, nor is any\nsuch strike, slow-down, work stoppage or other material labor controversy or\ndispute pending or, to the best Knowledge of \n\n \n 24\n\nNBC, threatened with respect to the current or former employees of SNAP, (ii)\nSNAP is not a party to any labor contract, collective bargaining agreement,\ncontract, letter of understanding or, to Neon's Knowledge, any other agreement,\nformal or informal with any labor union or organization, nor are any of SNAP's\nemployees represented by any labor union or organization and (iii) SNAP has not\nclosed any facility, effectuated any layoffs of employees or implemented any\nearly retirement, separation or window program within the past two years nor\nplanned or announced any such action or program for the future.\n\n (l) Intellectual Property. SNAP owns or is licensed or otherwise has\n --------------------- \nthe right to use, all Intellectual Property currently used in its business (the\n\"SNAP Intellectual Property\"), except as would not, individually or in the\n -------------------------- \naggregate, have a Material Adverse Effect. SNAP has not infringed upon or is in\nconflict with the Intellectual Property of any third party nor has SNAP received\nany written notice of any claim that it has infringed upon or is in conflict\nwith any Intellectual Property of any third party, except as would not,\nindividually or in the aggregate, have a Material Adverse Effect. Except as set\nforth on Schedule 4.2(l), none of the rights of SNAP to the SNAP Intellectual\n --------------- \nProperty will be impaired in any way by the transactions provided for herein,\nand all of the rights of SNAP to the SNAP Intellectual Property will be fully\nenforceable by SNAP after the Closing Date to the same extent as such rights\nwould have been enforceable by SNAP before the Closing, without the consent or\nagreement of any other party other than any consents and agreements the failure\nof which to obtain, individually or in the aggregate, would not have a Material\nAdverse Effect. There have been no claims (whether private or governmental)\nagainst SNAP asserting the invalidity or unenforceability of its ownership,\nlicense or other right to use any of the registered SNAP Intellectual Property.\n\n (m) Government Licenses, Permits, Etc. Except as set forth on\n --------------------------------- \nSchedule 4.2(m), SNAP has all licenses, permits, consents, approvals,\n--------------- \nauthorizations, qualifications and orders of Governmental Authorities required\nfor the conduct of its business as presently conducted, except where failure\nwould not, individually or in the aggregate, have a Material Adverse Effect.\n\n (n) Conduct of Business in Compliance with Regulatory and Contractual\n -----------------------------------------------------------------\nRequirements. SNAP has complied with all applicable laws, ordinances,\n------------ \nregulations or orders or other requirements of any Governmental Authority\nincluding, without limitation, all rules, regulations and administrative orders\nrelating to anti-competitive practices, discrimination, employment, health and\nsafety, except where the failure to be in such compliance would not have, either\nindividually or in the aggregate, a Material Adverse Effect.\n\n (o) Environmental Matters. Except as set forth on Schedule 4.2(o) and\n --------------------- --------------- \nexcept for matters that, individually or in the aggregate, would not have a\nMaterial Adverse Effect, (i) SNAP complies and has complied with all applicable\nEnvironmental Laws, and possesses and complies with and has possessed and\ncomplied with all Environmental Permits; (ii) there are and have been no\nMaterials of Environmental Concern, or other conditions, at any property owned\nor leased by SNAP that could give rise to any liability under any Environmental\nLaw or result in costs arising out of any Environmental Law; (iii) no judicial,\nadministrative, or arbitral proceeding (including any notice of violation or\nalleged violation) under any Environmental Law \n\n \n 25\n\nto which SNAP is, or to the Knowledge of SNAP will be, named as a party is\npending or, to the Knowledge of SNAP, threatened, nor is SNAP the subject of any\ninvestigation in connection with any such proceeding or potential proceeding;\n(iv) there are no past, present, or anticipated future events, conditions,\ncircumstances, practices, plans, or legal requirements that could be expected to\nprevent, or materially increase the burden on SNAP of complying with applicable\nEnvironmental Laws or of obtaining, renewing, or complying with all\nEnvironmental Permits required under such laws; and (v) SNAP has provided to the\nother parties true and complete copies of all Environmental Reports relating to\nit in the possession or control of such party.\n\n (p) Employee Benefit Matters. (i) Schedule 4.2(p) contains a true\n ------------------------ --------------- \nand complete list of each \"employee benefit plan\" (within the meaning of section\n3(3) of ERISA, and all stock purchase, stock option, severance, employment,\nchange-in-control, fringe benefit, collective bargaining, bonus, incentive,\ndeferred compensation and other employee benefit plans, agreements, programs,\npolicies or other arrangements, whether or not subject to ERISA (including any\nfunding mechanism therefor now in effect or required in the future as a result\nof the transaction contemplated by this Agreement or otherwise), whether formal\nor informal, oral or written, legally binding or not, under which any employee\nor former employee of SNAP or its Subsidiaries has any present or future right\nto benefits and under which SNAP or its Subsidiaries has any present or future\nliability. All such plans, agreements, programs, policies and arrangements\nshall be collectively referred to as the \"SNAP Plans\".\n ---------- \n\n (ii) With respect to each SNAP Plan which is maintained solely by\nSNAP (the \"Portal Level Plans\"), SNAP has made available to NBC a current,\n ------------------ \naccurate and complete copy (or, to the extent no such copy exists, an accurate\ndescription) thereof and, to the extent applicable: (A) any related trust\nagreement or other funding instrument; (B) the most recent determination letter,\nif applicable; (C) any summary plan description and other written communications\n(or a description of any oral communications) by SNAP or its Subsidiaries to\ntheir employees concerning the extent of the benefits provided under a SNAP\nPlan; and (D) for the most recent two years (I) the Form 5500 and attached\nschedules and (II) audited financial statements.\n\n (iii) (A) Each SNAP Plan has been established and administered in\naccordance with its terms, and in compliance with the applicable provisions of\nERISA, the Code and other applicable laws, rules and regulations; (B) each SNAP\nPlan which is intended to be qualified within the meaning of Code section 401(a)\nis so qualified and has received a favorable determination letter as to its\nqualification (or is established using a prototype plan form which has received\nsuch a letter), and nothing has occurred, whether by action or failure to act,\nthat could reasonably be expected to cause the loss of such qualification; (C)\nfor each SNAP Plan with respect to which a Form 5500 has been filed, no material\nchange has occurred with respect to the matters covered by the most recent Form\nsince the date thereof; (D) no non-exempt \"prohibited transaction\" (as such term\nis defined in ERISA section 406 and Code section 4975) with respect to any SNAP\nPlan; and (E) no SNAP Plan provides retiree welfare benefits and neither SNAP\nnor its Subsidiaries have any obligations to provide any retiree welfare\nbenefits except as provided under Section 4980B of the Code.\n\n \n 26\n\n (iv) No SNAP Plan is subject to Title IV of ERISA (including a\nmultiemployer plan within the meaning of Section 3(37) of ERISA), no SNAP Plan\nis a multiple employer plan; and no SNAP Plan is subject to the minimum funding\nrequirements of ERISA Section 302 or Code Section 412.\n\n (v) Neither SNAP nor any of its Subsidiaries nor any member of the\nControlled group of which it is a member has (A) engaged in, or is a successor\nor parent corporation to an entity that has engaged in, a transaction described\nin Sections 4069 or 4212(c) of ERISA or (B) incurred, or could reasonably be\nexpected to incur, any liability under (I) Title IV of ERISA arising in\nconnection with the termination of, or a complete or partial withdrawal from,\nany plan covered or previously covered by Title IV of ERISA or (II) Section 4971\nof the Code that in either case could become a liability of the SNAP or any\nSubsidiary or NMC after the Closing Date. The assets of SNAP and all of its\nSubsidiaries are not now, nor will they after the passage of time be, subject to\nany lien imposed under Code Section 412(n) by reason of a failure of any of the\nSNAP or any Subsidiary or any member of the Controlled Group of which it is a\nmember to make timely installments or other payments required under Code Section\n412.\n\n (vi) With respect to any SNAP Plan, (A) no actions, suits or claims\n(other than routine claims for benefits in the ordinary course) are pending or,\nto the Knowledge of SNAP or its Subsidiaries, threatened and (B) no facts or\ncircumstances exist that could reasonably be expected to give rise to any such\nactions, suits or claims.\n\n (vii) Except as provided on Schedule 4.2(p), no SNAP Plan exists\n --------------- \nthat could result in the payment to any present or former employee of SNAP or\nits Subsidiaries of any money or other property or accelerate or provide any\nother rights or benefits to any present or former employee of SNAP or its\nSubsidiaries as a result of the transaction contemplated by this Agreement,\nwhether or not such payment would constitute a parachute payment within the\nmeaning of Code Section 280G.\n\n (q) Absence of Certain Business Practices. Neither SNAP, nor any\n ------------------------------------- \nofficer, employee or agent of SNAP, nor any other Person acting on behalf of\nSNAP, has, directly or indirectly, within the past five years given or agreed to\ngive any gift or similar benefit to any customer, supplier, governmental\nemployee or other Person or entity who is or may be in a position to help or\nhinder SNAP (or assist SNAP in connection with any actual or proposed\ntransaction) which (x) subjects any party or NMC or any of their respective\nAffiliates, to any damage or penalty in any civil, criminal or governmental\nlitigation or proceeding, (y) if not given in the past, could have had a\nMaterial Adverse Effect or (z) if not continued in the future, could have a\nMaterial Adverse Effect or which might subject any party or NMC or any of their\nrespective Affiliates to suit or penalty in any private or governmental\nlitigation or proceeding.\n\n (r) Tax Matters. Except as set forth on Schedule 4.2(r), (i) SNAP\n ----------- --------------- \nand its Subsidiaries have timely filed (or have had timely filed on their\nbehalf) or will timely file or cause to be timely filed, all Tax Returns\nrequired by applicable law to be filed by SNAP and its Subsidiaries prior to the\nEffective Time. All such Tax Returns are or will be true, complete and correct\nin all material respects. There are no outstanding agreements or waivers\nextending the \n\n \n 27\n\nstatutory period of limitation applicable to any of such Tax Returns and SNAP\nand its Subsidiaries has not requested any extension of time within which to\nfile any material Tax Return, which return has not yet been filed. There is no\npending claim by any Tax Authority of a jurisdiction where SNAP or any of its\nSubsidiaries have not filed Tax Returns that SNAP are any of its Subsidiaries\nare or may have been subject to taxation by that jurisdiction. All Taxes\nrequired to be withheld by SNAP or its Affiliates with respect to their\nactivities, properties, employees or independent contractors have been withheld\nand paid over to the appropriate Tax Authority.\n\n (ii) SNAP and its Subsidiaries have paid (or have had paid on their\nbehalf), or where payment is not yet due, have established (or have had\nestablished on their behalf and for their sole benefit and recourse), or will\nestablish or cause to be established on or before the Effective Time, an\nadequate accrual for the payment of, all Taxes due with respect to any period\nbeginning prior to the Effective Time. No deficiency or adjustment for any\nTaxes has been threatened, proposed, asserted or assessed against SNAP or its\nSubsidiaries. There are no liens for Taxes upon the assets of SNAP or its\nSubsidiaries, except for liens for current Taxes not yet due.\n\n (iii) SNAP and its Subsidiaries are not required to include in income\nany adjustment pursuant to Section 481(a) of the Code or any similar applicable\nprovision by reason of a voluntary change in accounting method initiated by SNAP\nor its Subsidiaries, and neither the Internal Revenue Service nor any taxing\nauthority has proposed in writing any such adjustment or change in accounting\nmethod. SNAP and its Subsidiaries have not received a tax ruling or entered\ninto a closing agreement with any taxing authority that would have a Material\nAdverse Effect on SNAP or its Subsidiaries.\n\n (iv) SNAP and its Subsidiaries have not made any payments, are not\nobligated to make any payments, and are not a party to any agreement that could\nobligate it to make any payments that would not be deductible pursuant to\nSection 280G of the Code.\n\n (v) SNAP has been and currently is taxable as a partnership for\nfederal income tax purposes and in all jurisdictions in which it is subject to\nTaxes or files Tax Returns. Each of SNAP's Subsidiaries has been and currently\nis (A) wholly owned by SNAP and (B) an entity disregarded from its owner\npursuant to Section 301.7701-2 of the Treasury Regulations. Neither SNAP nor\nany Subsidiary is a party to any safe harbor lease within the meaning of Section\n168(f)(8) of the Code, as in effect prior to amendment by the Tax Equity and\nFiscal Responsibility Act of 1982. SNAP and its Subsidiaries are not a party to\nany joint venture, partnership, or other agreement, contract, or arrangement\n(either in writing or verbally, formally or informally) which could be treated\nas partnership for federal income tax purposes.\n\n (vi) Neither SNAP nor any of its Subsidiaries has a \"permanent\nestablishment,\" as defined in any applicable Tax treaty or convention of the\nUnited States of America, or fixed place of business in any foreign country.\nSNAP and its Subsidiaries are in compliance with the terms and conditions of any\napplicable tax exemptions, agreements or orders of any foreign government to\nwhich it may be subject or which it may have claimed, and the \n\n \n 28\n\ntransactions contemplated by this Agreement will not have any adverse effect on\nsuch compliance.\n\n (vii) Neither SNAP nor any of its Subsidiaries is or has been bound by\nany tax sharing or tax allocation agreement, and it has no contractual\nobligation to indemnify any other person with respect to Taxes.\n\n (s) Year 2000 Compliance. SNAP has adopted and implemented a\n -------------------- \ncommercially reasonable plan to provide (x) that the change of the year from\n1999 to the year 2000 will not have a Material Adverse Effect and (y) that the\nimpacts of such change on the venders and customers of SNAP will not have a\nMaterial Adverse Effect. In SNAP's reasonable best estimate, no expenditures\nmaterially in excess of currently budgeted items previously disclosed to Xenon 2\nwill be required in order to cause the information and business systems of SNAP\nto operate properly following the change of the year 1999 to the year 2000.\nSNAP reasonably expects any material issues related to such change of the year\nwill be resolved in accordance with the timetable set forth in such plan (and in\nany event on a timely basis in order to be resolved before the year 2000).\nBetween the date of this Agreement and the Effective Time, SNAP shall continue\nto use commercially reasonable efforts to implement such plan.\n\n (t) Options. Except for the SNAP 1998 LLC Option Plan, SNAP has never\n ------- \nadopted or maintained any option plan or other plan providing for equity\ncompensation of any Person. As of the date hereof, SNAP has reserved 1,604,938\nunits for issuance pursuant to the SNAP 1998 LLC Option Plan (\"SNAP Options\"),\n ------------ \nof which 1,432,970 have been issued as of the date hereof, all of which units\nremain subject to SNAP Options unexercised as of the date hereof. Except as set\nforth in Schedule 4.2(t), none of the SNAP Options will be accelerated in any\n --------------- \nway by the transactions contemplated by this Agreement. SNAP has made available\nto NBC accurate and complete copies of all option plans pursuant to which SNAP\nhas granted options and the applicable vesting schedule for each such option.\nAll units subject to issuance as aforesaid, upon issuance on the terms and\nconditions specified in the instruments pursuant to which they are issuable,\nwould be duly authorized, validly issued, fully paid and non-assessable. Except\nas set forth in Schedule 4.2(t), there are no commitments or agreements of any\n --------------- \ncharacter to which SNAP is bound obligating SNAP to accelerate the vesting of\nany SNAP Options as a result of this Agreement. Schedule 4.2(e) lists each\n --------------- \noutstanding SNAP Option and identifies with respect to each such SNAP Option;\nits exercise price; its grant date; its vesting schedule; and what portion of\nsuch SNAP Option remains outstanding as of the date hereof. NBC shall prepare\nand deliver to Xenon 2 and Xoom an updated version of Schedule 4.2(e) prior to\n --------------- \nthe Effective Time as of a date no earlier than 5 days prior to the Effective\nTime.\n\n 4.3 Representations and Warranties of Xoom and Xenon 2. Xoom and Xenon 2\n -------------------------------------------------- \nrepresent and warrant to NBC and NMC as follows:\n\n (a) Due Organization, Power and Good Standing. Xoom, Xenon 2 and each\n ----------------------------------------- \nof their respective Subsidiaries is duly organized, validly existing and in good\nstanding under the laws of its jurisdiction of organization, and has the\nrequisite power and authority to own, lease and operate its properties and to\nconduct its business as now conducted by it. Xoom, Xenon 2 \n\n \n 29\n\nand each of their respective Subsidiaries party to an Implementing Agreement has\nall requisite power and authority to enter into this Agreement, the Xenon 2\nMerger Agreement, the Voting Agreement, the Option Agreement and the\nImplementing Agreements to which it is a party and to perform its obligations\nhereunder and thereunder. Xoom, Xenon 2 and each of their respective\nSubsidiaries is qualified to do business and is in good standing in all\njurisdictions in which it conducts its business, except where the failure to do\nso would not, individually or in the aggregate, taken as a whole, have a\nMaterial Adverse Effect.\n\n (b) Authorization and Validity of Agreement. The execution, delivery\n --------------------------------------- \nand performance by Xoom, Xenon 2 and each of their respective Subsidiaries of\nthis Agreement, the Xenon 2 Merger Agreement, the Voting Agreement, the Option\nAgreement and the Implementing Agreements to which Xoom, Xenon 2 or their\nrespective Subsidiaries is a party and the consummation by Xoom, Xenon 2 and\neach of their respective Subsidiaries of the transactions contemplated hereby\nand thereby have been duly authorized by all necessary corporate action on the\npart of Xoom, Xenon 2 and each of their respective Subsidiaries, subject to\nobtaining, in the case of the Xenon 2 Merger Agreement, the Stockholder Approval\n(as defined therein), and, in the case of this Agreement, the affirmative vote\nof the holders of a majority of the outstanding shares of common stock of Xenon\n2 (the \"Xenon 2 Stockholder Approval\"). The Board of Directors of Xoom, by\n ---------------------------- \nresolutions duly adopted by unanimous vote with one abstention at a meeting duly\ncalled and held and not subsequently rescinded or modified in any way, has duly\ndetermined that this Agreement is advisable for Xoom and its stockholders,\napproved this Agreement and the Merger and recommended that the stockholders of\nXoom adopt the Xenon 2 Merger Agreement and approve the transactions\ncontemplated thereby and vote in favor of Xoom, as sole stockholder of Xenon 2,\nadopting the NMC Agreement at the Xenon 2 Stockholder Meeting. Each of this\nAgreement, the Xenon 2 Merger Agreement, the Option Agreement and the Voting\nAgreement has been, and each of the other Implementing Agreements to which Xoom,\nXenon 2 or any of their respective Subsidiaries is a party will on the Closing\nDate be, duly executed and delivered by Xoom, Xenon 2 and each of their\nrespective Subsidiaries and constitutes or, in the case of the other\nImplementing Agreements, upon execution thereof will constitute, a valid and\nlegally binding obligation of Xoom, Xenon 2 and each of their respective\nSubsidiaries, enforceable against each in accordance with their respective\nterms.\n\n (c) Governmental Approvals; Consents. Except as described in Schedule\n -------------------------------- --------\n4.3(c), the execution, delivery and performance of this Agreement, the Xenon 2\n------ \nMerger Agreement, the Voting Agreement, the Option Agreement and the\nImplementing Agreements by Xoom, Xenon 2 and each of their respective\nSubsidiaries and the consummation by such party of the transactions contemplated\nhereby and thereby will not (i) conflict with or result in a breach of any\nprovision of the certificate of incorporation or bylaws or other governing\ndocuments of Xoom, Xenon 2 or their respective Subsidiaries; (ii) require any\nconsent, approval, authorization or permit of, or filing with or notification\nto, any Governmental Authority; (iii) require the consent or approval of any\nPerson (other than a Governmental Authority) or violate or conflict with, or\nresult in a breach of any provision of, constitute a default (or an event which\nwith notice or lapse of time or both would become a default) or give to any\nthird party any right of termination, cancellation, amendment or acceleration\nunder, or result in the creation of a Lien on any of the assets of Xoom, Xenon 2\nor any of their respective Subsidiaries under, any of the \n\n \n 30\n\nterms, conditions or provisions of any contract or license to which Xoom, Xenon\n2 or any of their respective Subsidiaries is a party or by which it or its\nassets or property are bound; or (iv) violate or conflict with any order, writ,\ninjunction, decree, statute, rule or regulation applicable to Xoom, Xenon 2 or\nany of their respective Subsidiaries; other than any consents, approvals,\nauthorizations and permits the failure of which to obtain and any violations,\nconflicts, breaches defaults and other matters set forth pursuant to clauses\n(ii), (iii) and (iv) above which, individual ly or in the aggregate, would not\nreasonably be expected to have a Material Adverse Effect.\n\n (d) Certain Fees. None of Xoom, Xenon 2 or any of their respective\n ------------ \nSubsidiaries nor the officers, directors or employees thereof have employed any\nbroker or finder or incurred any other Liability for any brokerage fees,\ncommissions or finders' fees in connection with the transactions contemplated\nhereby; except that Xoom has employed Bear, Stearns & Co., Inc. and Hambrecht & Quist, LLC whose fees and expenses will be paid in accordance with Section 10.5\n ------------\nif the transactions contemplated by this Agreement are consummated and otherwise\nwill be paid by Xoom. Xoom has provided NBC a copy of the engagement letter\nentered into with Hambrecht & Quist, LLC related to the transactions\ncontemplated hereby.\n\n (e) Opinion of Financial Advisor. Xoom has received the opinion of\n ---------------------------- \neach of Bear, Stearns & Co. Inc. and Hambrecht & Quist, LLC, in each case as of\nthe date hereof, with respect to the fairness of the transactions contemplated\nby this Agreement from a financial point of view.\n\n (f) Capital Stock. (i) The authorized capital stock of Xoom consists\n ------------- \nof 40,000,000 shares of Xoom Stock and 5,000,000 shares of Xoom Preferred Stock,\nof which 17,162,056 shares of Xoom Stock and no shares of Xoom Preferred Stock\nhave been issued and are outstanding as of the date hereof. All outstanding\nshares of Xoom Stock are duly authorized, validly issued, fully paid and non-\nassessable and not subject to preemptive rights created by statute, the\ncertificate of incorporation or bylaws of Xoom or any agreement to which Xoom is\na party or by which it is bound and have been issued in compliance with federal\nand state securities laws. There are no declared or accrued unpaid dividends\nwith respect to any shares of Xoom Stock. All of the shares of capital stock of\neach of the Subsidiaries of Xoom are duly authorized and issued, fully paid and\nnonassessable and are owned by Xoom or another Subsidiary of Xoom free and clear\nof all Liens. Except for the capital stock of its Subsidiaries, Xoom does not\nown, directly or indirectly, any capital stock or other ownership interest in\nany Person.\n\n (ii) As of the date hereof, the authorized capital stock of Xenon 2\nconsists of 100 shares of common stock, par value $0.0001 per share, of which\n100 shares have been issued and are outstanding as of the date hereof. Prior to\nthe Closing Date, Xenon 2's certificate of incorporation will be amended to\nprovide for an authorized capital stock sufficient to permit Xenon 2 to issue\nall of the Class A Common Stock and Class B Common Stock to be issued by Xenon 2\npursuant to this Agreement and the Xenon 2 Merger Agreement. All capital stock\nissued by Xenon 2 pursuant to the Xenon 2 Merger Agreement and this Agreement\nwill be duly authorized, validly issued, fully paid and non-assessable and not\nsubject to preemptive rights created by statute, the certificate of\nincorporation or bylaws of Xenon 2 or any agreement to which Xenon 2 is a party\nor by which it is bound and issued in compliance with federal and state\n\n \n 31\n\nsecurities laws. All of the shares of capital stock of each of the Subsidiaries\nof Xenon 2 are duly authorized and issued, fully paid and nonassessable and are\nowned by Xenon 2 free and clear of all Liens. Except for the capital stock of\nits Subsidiaries, Xenon 2 does not own, directly or indirectly, any capital\nstock or other ownership interest in any Person.\n\n (g) Stock Options. Except for the Xoom 1998 Employee Stock Purchase\n ------------- \nPlan (the \"Xoom ESPP\"), the Xoom Option Plan pursuant to which the Xoom Plan\n --------- \nOptions were issued, and the Xoom Non-Plan Options (together with the Xoom Plan\nOptions, the \"Xoom Options\"), none of Xoom, Xenon 2 or any of their respective\n ------------ \nSubsidiaries has ever adopted or maintained any stock option plan or other plan\nproviding for equity compensation of any person. As of the date hereof, Xoom has\nreserved 3,535,224 shares of Xoom Stock for issuance pursuant to the Xoom ESPP,\nXoom Plan Options and Xoom Non-Plan Options, of which 3,336,157 have been issued\nas of the date hereof, of which 2,043,556 shares remain subject to Xoom Plan\nOptions unexercised as of the date hereof and 981,212 shares remain subject to\nXoom Non-Plan Options unexercised as of the date hereof. Except pursuant to\nSection 6.8 and as reflected on Schedule 4.3(g) none of the Xoom Options will be\n----------- --------------- \naccelerated in any way by the transactions contemplated by this Agreement.\nXoom, Xenon 2 and their respective Subsidiaries have made available to NMC\naccurate and complete copies of all stock option plans pursuant to which Xoom,\nXenon 2 and their respective Subsidiaries have granted stock options that are\ncurrently outstanding, the form of all stock option agreements evidencing such\noptions and the applicable vesting schedule for each such option. All shares of\nXoom Stock and Class A Common Stock subject to issuance as aforesaid, upon\nissuance on the terms and conditions specified in the instruments pursuant to\nwhich they are issuable, would be duly authorized, validly issued, fully paid\nand non-assessable. Except as set forth in Schedule 4.3(g) or as contemplated by\n --------------- \nthis Agreement, there are no commitments or agreements of any character to which\nXoom, Xenon 2 or any of their respective Subsidiaries are bound obligating Xoom,\nXenon 2 or any of their respective Subsidiaries to accelerate the vesting of any\nXoom Option as a result of this Agreement. Schedule 4.3(g) lists each\n -------------- \noutstanding Xoom Option and identifies with respect to each such Xoom Option\nwhether it is a Xoom Plan Option or a Xoom Non-Plan Option; its exercise price;\nits grant date; its vesting schedule; and what portion of such Xoom Option\nremains outstanding as of the date hereof. Xoom, Xenon 2 and their respective\nSubsidiaries shall prepare and deliver to NMC an updated version of Schedule\n --------\n4.3(g) prior to the Effective Time as of a date no earlier than 5 days prior to\n------ \nthe Effective Time.\n\n (h) Obligations With Respect to Capital Stock. Except as set forth in\n ----------------------------------------- \nSection 4.3(f) and Section 4.3(g) and on Schedule 4.3(h), there are no equity\n-------------- -------------- --------------- \nsecurities, partnership interests or similar ownership interests of any class of\nany equity security of Xoom, Xenon 2 or any of their respective Subsidiaries, or\nany securities exchangeable or convertible into or exercisable for such equity\nsecurities, partnership interests or similar ownership interests, issued,\nreserved for issuance or outstanding. Except as set forth in Schedule 4.3(h) or\n --------------- \nas set forth in Section 4.3(g) hereof, there are no subscriptions, options,\n -------------- \nwarrants, equity securities, partnership interests or similar ownership\ninterests, calls, rights (including preemptive rights), commitments or\nagreements of any character to which Xoom, Xenon 2 or any of their respective\nSubsidiaries is a party or by which Xoom, Xenon 2 or any of their respective\nSubsidiaries is bound obligating Xoom, Xenon 2 or any of their respective\nSubsidiaries to issue, deliver or sell, or cause to be \n\n \n 32\n\nissued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause\nthe repurchase, redemption or acquisition of, any shares of capital stock,\npartnership interests or similar ownership interests of Xoom, Xenon 2 or any of\ntheir respective Subsidiaries or obligating Xoom, Xenon 2 or any of their\nrespective Subsidiaries to grant, extend, accelerate the vesting of or enter\ninto any such subscription, option, warrant, equity security, call, right,\ncommitment or agreement. Except as contemplated by this Agreement, there are no\nregistration rights and there is no voting trust, proxy, stockholder rights\nplan, antitakeover plan or other agreement or understanding to which Xoom, Xenon\n2 or any of their respective Subsidiaries is a party or by which they are bound\nwith respect to any equity security, partnership interest or similar ownership\ninterest of any class of any equity security of Xoom, Xenon 2 or any of their\nrespective Subsidiaries.\n\n (i) SEC Filings, Financial Information, Liabilities. Xoom has filed\n ----------------------------------------------- \nand made publicly available a true and complete copy of each report, schedule,\nregistration statement and definitive proxy statement required to be filed with\nthe SEC since December 9, 1998 (the \"SEC Documents\"). As of their respective\n ------------- \ndates, the SEC Documents complied in all material respects with the requirements\nof the Securities Act or the Exchange Act, as the case may be, applicable to\nsuch SEC Documents. None of the SEC Documents when filed contained any untrue\nstatement of a material fact or omitted to state any material fact required to\nbe stated therein or necessary in order to make the statements therein, in light\nof the circumstances under which they were made, not misleading. The financial\nstatements of Xoom included in the SEC Documents comply as to form in all\nmaterial respect with the applicable accounting requirements and with the\npublished rules and regulations of the SEC with respect thereto, have been\nprepared in accordance with GAAP during the period involved (except as may be\nindicated in the notes thereto or, in the case of the unaudited statements, as\npermitted by Form 10-Q of the SEC, or for normal year-end adjustments) and\nfairly present in all material respects the consolidated financial position of\nXoom and its consolidated Subsidiaries as at the dates thereof and the\nconsolidated results of their operations and cash for the periods then ended.\nExcept as set forth in the SEC Documents (including any item accounted for in\nthe financial statements contained in the SEC Documents or set forth in the\nnotes thereto) as of December 31, 1998, neither Xoom nor any of its Subsidiaries\nhad, and since such date neither Xoom or any of its Subsidiaries has incurred,\nany claims, liabilities or obligations of any nature (whether accrued, absolute,\ncontingent or otherwise) which, individually or in the aggregate, would have a\nMaterial Adverse Effect on Xoom (other than claims, liabilities or obligations\ncontemplated by this Agreement or expressly permitted to be incurred pursuant to\nthis Agreement). In addition, since December 31, 1998, there has not been any\ndeclaration, setting aside or payment of a dividend or other distribution with\nrespect to Xoom Stock or any material change in accounting methods or practices\nby Xoom or any of its Subsidiaries.\n\n (j) Absence of Certain Changes or Events. Except as disclosed on\n ------------------------------------ \nSchedule 4.3(j) since December 31, 1998, Xoom, Xenon 2 and each of their\n--------------- \nrespective Subsidiaries have conducted their businesses in all material respects\nonly in the ordinary course, consistent with past practice and there has not\nbeen prior to the date hereof, (x) any material adverse change in the assets,\nliabilities, business, results of operations or financial condition of Xoom,\nXenon 2, or any of their respective Subsidiaries or (y) except in the ordinary\ncourse of business consistent \n\n \n 33\n\nwith past practice and except for such matters that would not reasonably be\nexpected to have a Material Adverse Effect, any damage, destruction, loss,\nconversion, condemnation or taking by eminent domain related to any material\nasset of Xoom, Xenon 2 and any of their respective Subsidiaries, taken as a\nwhole. In addition, except as disclosed on Schedule 4.3(j), from December 31,\n ---------------\n1998 to the date hereof, none of Xoom, Xenon 2 or any of their respective\nSubsidiaries has (A) acquired or disposed of any material assets or entered into\nany agreement or other arrangement for any such acquisition or disposition or\n(B) relinquished, forgiven or canceled any material debts or claims.\n\n (k) Properties, Contracts, Permits and Other Data. Except as\n --------------------------------------------- \nspecified in Schedule 4.3(k) hereto, all rights, licenses, leases,\n --------------- \nregistrations, applications, contracts, commitments and other agreements of\nXoom, Xenon 2 and their respective Subsidiaries are in full force and effect and\nare valid and enforceable in accordance with their respective terms except for\nsuch failures to be in full force and effect and valid and enforceable that\nwould not, individually or in the aggregate, have a Material Adverse Effect.\nNone of Xoom, Xenon 2 or any of their respective Subsidiaries is in breach or\ndefault in the performance of any obligation thereunder and no event has\noccurred or has failed to occur whereby any of the other parties thereto have\nbeen or will be released therefrom or will be entitled to refuse to perform\nthereunder, the enforcement of which would have, either individually or in the\naggregate, a Material Adverse Effect. Xoom has provided to NBC complete and\naccurate copies of its current annual budget and operating plan (the \"Xoom\n ----\nBudget\").\n------ \n\n (l) Legal Proceedings. Except as described in Schedule 4.3(l), there\n ----------------- --------------- \nis no litigation, proceeding or governmental investigation to which Xoom, Xenon\n2 or their respective Subsidiaries is a party pending or, to the best Knowledge\nof Xoom, Xenon 2 and their respective Subsidiaries, threatened against Xoom,\nXenon 2 or any of their respective Subsidiaries which, either individually or in\nthe aggregate, would reasonably be expected to result in a Material Adverse\nEffect or which, as of May 9, 1999, seeks to restrain or enjoin the consummation\nof any of the transactions contemplated hereby. None of Xoom, Xenon 2, or any\nof their respective Subsidiaries is a party to, nor are any of their respective\nassets subject to, any judgment, writ, decree, injunction or order entered by\nany court or governmental authority (domestic or foreign) that, individually or\nin the aggregate, would reasonably be expected to have a Material Adverse\nEffect.\n\n (m) Labor Controversies. Except as set forth on Schedule 4.3(m), (i)\n ------------------- --------------- \nthere have been no labor strikes, slow-downs, work stoppages, lock-outs or other\nmaterial labor controversies or disputes during the past two years, nor is any\nsuch strike, slow-down, work stoppage or other material labor controversy or\ndispute pending or, to the best Knowledge of such party, threatened with respect\nto the current or former employees of Xoom, Xenon 2 and their respective\nSubsidiaries, (ii) none of Xoom, Xenon 2 or any of their respective Subsidiaries\nis a party to any labor contract, collective bargaining agreement, contract,\nletter of understanding or, to such party's Knowledge, any other agreement,\nformal or informal with any labor union or organization, nor are any of Xoom's,\nXoom 2's or any of their respective Subsidiaries' employees represented by any\nlabor union or organization nor have there been any labor union organizing\nactivities at any Xoom, Xenon 2 or any of their respective Subsidiaries'\nfacilities \n\n \n 34\n\nwithin the last three years and (iii) none of Xoom, Xenon 2 or any of their\nrespective Subsidiaries has closed any facility, effectuated any layoffs of\nemployees or implemented any early retirement, separation or window program\nwithin the past two years nor has Xoom, Xenon 2 or any of their respective\nSubsidiaries planned or announced any such action or program for the future.\n\n (n) Intellectual Property. Xoom, Xenon 2 and their respective\n --------------------- \nSubsidiaries own or are licensed or otherwise have the right to use, all\nIntellectual Property currently used by Xoom, Xenon 2 and each of their\nrespective Subsidiaries (the \"Xoom Intellectual Property\"), except as would not,\n -------------------------- \nindividually or in the aggregate, have a Material Adverse Effect. None of Xoom,\nXenon 2 or any of their respective Subsidiaries has infringed upon or is in\nconflict with the Intellectual Property of any third party nor has Xoom, Xenon 2\nor any of their respective Subsidiaries received any written notice of any claim\nthat Xoom, Xenon 2 or any of their respective Subsidiaries has infringed upon or\nis in conflict with any Intellectual Property of any third party, except as\nwould not, individually or in the aggregate, have a Material Adverse Effect.\nExcept as set forth on Schedule 4.3(n), none of the rights of Xoom, Xenon 2 or\n --------------- \ntheir respective Subsidiaries to the Xoom Intellectual Property will be impaired\nin any way by the transactions provided for herein, and all of the rights of\nXoom, Xenon 2 and their respective Subsidiaries to the Xoom Intellectual\nProperty will be fully enforceable by Xenon 2 after the Closing Date to the same\nextent as such rights would have been enforceable by Xoom, Xenon 2 and their\nrespective Subsidiaries before the Closing, without the consent or agreement of\nany other party other than any consents and agreements the failure of which to\nobtain, individually or in the aggregate, would not have a Material Adverse\nEffect. There have been no claims (whether private or governmental) against\nXoom, Xenon 2 or their respective Subsidiaries asserting the invalidity or\nunenforceability of its ownership, license or other right to use to any of the\nregistered Xoom Intellectual Property.\n\n (o) Government Licenses, Permits, Etc. Except as set forth on\n --------------------------------- \nSchedule 4.3(o), Xoom, Xenon 2 and their respective Subsidiaries have all\n--------------- \nlicenses, permits, consents, approvals, authorizations, qualifications and\norders of Governmental Authorities required for the conduct of its Business as\npresently conducted, except where failure would not, individually or in the\naggregate, have a Material Adverse Effect.\n\n (p) Conduct of Business in Compliance with Regulatory and Contractual\n -----------------------------------------------------------------\nRequirements. Xoom, Xenon 2 and their respective Subsidiaries have complied\n------------ \nwith all applicable laws, ordinances, regulations or orders or other\nrequirements of any Governmental Authority, including, without limitation, all\nrules, regulations and administrative orders relating to anti-competitive\npractices, discrimination, employment, health and safety, except where the\nfailure to be in such compliance would not have, either individually or in the\naggregate, a Material Adverse Effect.\n\n (q) Employee Benefit Matters. (i) Schedule 4.3(q)(i) contains a true\n ------------------------ ------------------ \nand complete list of each \"employee benefit plan\" (within the meaning of section\n3(3) of ERISA), and all stock purchase, stock option, severance, employment,\nchange-in-control, fringe benefit, collective bargaining, bonus, incentive,\ndeferred compensation and other employee benefit plans, agreements, programs,\npolicies or other arrangements, whether or not subject to ERISA \n\n \n 35\n\n(including any funding mechanism therefor now in effect or required in the\nfuture as a result of the transaction contemplated by this Agreement or\notherwise), whether formal or informal, oral or written, legally binding or not,\nunder which any employee or former employee of Xoom, Xenon 2 or their respective\nSubsidiaries has any present or future right to benefits and under which Xoom,\nXenon 2 or their respective Subsidiaries has any present or future liability.\nAll such plans, agreements, programs, policies and arrangements shall be\ncollectively referred to as the \"Xoom Plans\".\n ---------- \n\n (ii) With respect to each Xoom Plan, Xoom, Xenon 2 and their\nrespective Subsidiaries have made available to NBC a current, accurate and\ncomplete copy (or, to the extent no such copy exists, an accurate description)\nthereof and, to the extent applicable: (A) any related trust agreement or other\nfunding instrument; (B) the most recent determination letter, if applicable; (C)\nany summary plan description and other written communications (or a description\nof any oral communications) by Xoom, Xenon 2 or their respective Subsidiaries to\ntheir employees concerning the extent of the benefits provided under a Xoom\nPlan; and (D) for the most recent two years (I) the Form 5500 and attached\nschedules and (II) audited financial statements.\n\n (iii) (A) Except as set forth on Schedule 4.3(q)(iii), each Xoom Plan\n -------------------- \nhas been established and administered in accordance with its terms, and in\ncompliance with the applicable provisions of ERISA, the Code and other\napplicable laws, rules and regulations; (B) each Xoom Plan which is intended to\nbe qualified within the meaning of Code section 401(a) is so qualified and has\nreceived a favorable determination letter as to its qualification (or\nestablished using a prototype plan form which has received such a letter), and\nnothing has occurred, whether by action or failure to act, that could reasonably\nbe expected to cause the loss of such qualification; (C) for each Xoom Plan with\nrespect to which a Form 5500 has been filed, no material change has occurred\nwith respect to the matters covered by the most recent Form since the date\nthereof; (D) no nonexempt \"prohibited transaction\" (as such term is defined in\nERISA section 406 and Code section 4975) with respect to Xoom Plans; and (E) no\nXoom Plan provides retiree welfare benefits and none of Xoom, Xenon 2 or any of\ntheir respective Subsidiaries have any obligations to provide any retiree\nwelfare benefits except as provided under Section 4980B of the Code.\n\n (iv) No Xoom Plan is subject to Title IV of ERISA (including a\nmultiemployer plan within the meaning of Section 3(37) of ERISA), no Xoom Plan\nis a multiple employer plan; and no Xoom Plan is subject to the minimum funding\nrequirements of ERISA Section 302 or Code Section 412.\n\n (v) None of Xoom, Xenon 2 or any of their respective Subsidiaries\nnor any Member of the Controlled Group of which it is a member has (A) engaged\nin, or is a successor or parent corporation to an entity that has engaged in, a\ntransaction described in Sections 4069 or 4212(c) of ERISA or (B) incurred, or\ncould reasonably be expected to incur, any liability under (I) Title IV of ERISA\narising in connection with the termination of, or a complete or partial\nwithdrawal from, any plan covered or previously covered by Title IV of ERISA or\n(II) Section 4971 of the Code that in either case could become a liability of\nXenon 2, Xoom or NMC or any of their respective Subsidiaries after the Closing\nDate. The assets of Xoom, Xenon 2 and all of \n\n \n 36\n\ntheir respective Subsidiaries are not now, nor will they after the passage of\ntime be, subject to any lien imposed under Code Section 412(n) by reason of a\nfailure of any of any Subsidiary or any Member of the Controlled Group of which\nit is a member to make timely installments or other payments required under Code\nSection 412.\n\n (vi) With respect to any Xoom Plan, (A) no actions, suits or\nclaims (other than routine claims for benefits in the ordinary course) are\npending or, to the Knowledge of Xoom, Xenon 2 or their respective Subsidiaries,\nthreatened and (B) no facts or circumstances exist that could reasonably be\nexpected to give rise to any such actions, suits or claims.\n\n (vii) Except as provided on Schedule 4.3(q)(vii), no Xoom Plan\n -------------------- \nexists that could result in the payment to any present or former employee of\nXoom, Xenon 2 or their respective Subsidiaries of any money or other property or\naccelerate or provide any other rights or benefits to any present or former\nemployee of Xoom, Xenon 2 or their respective Subsidiaries as a result of the\ntransaction contemplated by this Agreement, whether or not such payment would\nconstitute a parachute payment within the meaning of Code Section 280G.\n\n (r) Absence of Certain Business Practices. None of Xoom, Xenon 2 or\n ------------------------------------- \nany of their respective Subsidiaries, nor any officer, employee or agent\nthereof, nor any other Person acting on behalf of such Persons, has, directly or\nindirectly, within the past five years given or agreed to give any gift or\nsimilar benefit to any customer, supplier, governmental employee or other Person\nor entity who is or may be in a position to help or hinder Xoom, Xenon 2 or\ntheir respective Subsidiaries (or assist Xoom, Xenon 2 or their respective\nSubsidiaries in connection with any actual or proposed transaction) which (x)\nsubjects any party or Xenon 2 or any of their respective Subsidiaries, to any\ndamage or penalty in any civil, criminal or governmental litigation or\nproceeding, (y) if not given in the past, could have had a Material Adverse\nEffect or (z) if not continued in the future, could have a Material Adverse\nEffect or which might subject any party or Xenon 2 or any of their respective\nSubsidiaries to suit or penalty in any private or governmental litigation or\nproceeding.\n\n (s) Tax Matters. Except as set forth on Schedule 4.3(s), (i) Xoom,\n ----------- --------------- \nXenon 2 and each of their respective Subsidiaries have timely filed (or have had\ntimely filed on their behalf) or will timely file or cause to be timely filed,\nall Tax Returns required by applicable law to be filed by any of them prior to\nthe Effective Time. All such Tax Returns are or will be true, complete and\ncorrect in all material respects. There are no outstanding agreements or\nwaivers extending the statutory period of limitation applicable to any of such\nTax Returns and none of Xoom, Xenon 2 nor any of their respective Subsidiaries\nhas requested any extension of time within which to file any material Tax\nReturn, which return has not yet been filed. There is no pending claim by any\nTax Authority of a jurisdiction where Xoom, Xenon 2 or any of their respective\nSubsidiaries has not filed Tax Returns that Xoom, Xenon 2 or such Subsidiary is\nor may have been subject to taxation by that jurisdiction. All Taxes required\nto be withheld by Xoom, Xenon 2 or their respective Affiliates with respect to\ntheir activities, properties, employees or independent contractors have been\nwithheld and paid over to the appropriate Tax Authority.\n\n \n 37\n\n (ii) Xoom, Xenon 2 and each of their respective Subsidiaries have\npaid (or have had paid on their behalf), or where payment is not yet due, have\nestablished (or have had established on their behalf and for their sole benefit\nand recourse), or will establish or cause to be established on or before the\nEffective Time, an adequate accrual for the payment of, all Taxes due with\nrespect to any period beginning prior to the Effective Time. No deficiency or\nadjustment for any Taxes has been threatened, proposed, asserted or assessed\nagainst Xoom, Xenon 2 or any of their respective Subsidiaries. There are no\nliens for Taxes upon the assets of Xoom, Xenon 2 or any of their respective\nSubsidiaries, except for liens for current Taxes not yet due.\n\n (iii) None of Xoom, Xenon 2 or any of their respective Subsidiaries\nis required to include in income any adjustment pursuant to Section 481(a) of\nthe Code or any similar applicable provision by reason of a voluntary change in\naccounting method initiated by Xoom, Xenon 2 or any of their respective\nSubsidiaries, and neither the Internal Revenue Service nor any taxing authority\nhas proposed in writing any such adjustment or change in accounting method. None\nof Xoom, Xenon 2 or any of their respective Subsidiaries has received a tax\nruling or entered into a closing agreement with any taxing authority that would\nhave a continuing Material Adverse Effect upon Xoom, Xenon 2 or any of their\nrespective Subsidiaries.\n\n (iv) None of Xoom, Xenon 2 or any of their respective Subsidiaries\nhas made any payments, is obligated to make any payments, or is a party to any\nagreement that could obligate it to make any payments that would not be\ndeductible pursuant to Section 280G of the Code.\n\n (v) None of Xoom, Xenon 2 or any of their respective Subsidiaries\nhas a \"permanent establishment,\" as defined in any applicable Tax treaty or\nconvention of the United States of America, or fixed place of business in any\nforeign country. Xoom, Xenon 2 and their respective Affiliates are in compliance\nwith the terms and conditions of any applicable tax exemptions, agreements or\norders of any foreign government to which it may be subject or which it may have\nclaimed, and the transactions contemplated by this Agreement will not have any\nadverse effect on such compliance.\n\n (vi) Neither Xoom nor any Subsidiary is a party to any safe harbor\nlease within the meaning of Section 168(f)(8) of the Code, as in effect prior to\namendment by the Tax Equity and Fiscal Responsibility Act of 1982. Xoom and its\nSubsidiaries are not a party to any joint venture, partnership, or other\nagreement, contract, or arrangement (either in writing or verbally, formally or\ninformally) which could be treated as partnership for federal income tax\npurposes.\n\n (vii) Neither Xoom nor any of its Subsidiaries is or has been bound\nby any tax sharing or tax allocation agreement, and it has no contractual\nobligation to indemnify any other person with respect to Taxes.\n\n (t) Section 203. The Boards of Directors of Xoom, Xenon 2 and each\n ----------- \nof their respective Subsidiaries has taken appropriate action so that the\nprovisions of Section 203 of the DGCL restricting \"business combinations\" with\n\"interested stockholders\" (each as defined in \n\n \n 38\n\nsuch Section 203) will not, prior to the termination of this Agreement pursuant\nto Article IX hereof, apply to NBC or NMC or any of their Affiliates with\n ---------- \nrespect to this Agreement, the Xenon 2 Merger Agreement, the Option Agreement,\nthe Voting Agreement, any of the Implementing Agreements or any of the\ntransactions contemplated hereby or thereby.\n\n (u) Year 2000 Compliance. Except as set forth on Schedule 4.3(v),\n -------------------- --------------- \nXoom, Xenon 2 and each of their respective Subsidiaries has adopted and\nimplemented a commercially reasonable plan to provide (x) that the change of the\nyear from 1999 to the year 2000 will not have a Material Adverse Effect and (y)\nthat the impacts of such change on the venders and customers of Xoom, Xenon 2\nand each of their respective Subsidiaries will not have a Material Adverse\nEffect. In the reasonable best estimate of Xoom, Xenon 2 and each of their\nrespective Subsidiaries, no expenditures materially in excess of currently\nbudgeted items previously disclosed to Xenon 2 will be required in order to\ncause the information and business systems of Xoom, Xenon 2 and each of their\nrespective Subsidiaries to operate properly following the change of the year\n1999 to the year 2000. Xoom, Xenon 2 and each of their respective Subsidiaries\nreasonably expects any material issues related to such change of the year will\nbe resolved in accordance with the timetable set forth in such plan (and in any\nevent on a timely basis in order to be resolved before the year 2000). Between\nthe date of this Agreement and the Effective Time, Xoom, Xenon 2 and each of\ntheir respective Subsidiaries shall continue to use commercially reasonable\nefforts to implement such plan.\n\n (v) No Business Activities. Neither Xenon 2 nor Xenon 3 has conducted\n ---------------------- \nany activities other than in connection with their organization, the negotiation\nand execution of this Agreement and the NMC Merger Agreement and the\nconsummation of the transactions contemplated hereby and thereby.\n\n 4.4 Representations and Warranties with respect to GE Investments Sub. GE\n ----------------------------------------------------------------- \nInvestments Sub represents and warrants to Xoom and Xenon 2 as follows:\n\n (a) Due Organization, Power and Good Standing. GE Investments Sub is duly\n ----------------------------------------- \norganized, validly existing and in good standing under the laws of its\njurisdiction of organization, and has the requisite power and authority to own,\nlease and operate its properties and to conduct its business as now conducted by\nit. GE Investments Sub has all requisite power and authority to enter into this\nAgreement and to perform its obligations hereunder and thereunder. GE\nInvestments Sub is qualified to do business and is in good standing in all\njurisdictions in which it conducts its business, except where the failure to do\nso would not, individually or in the aggregate, taken as a whole, have a\nMaterial Adverse Effect.\n\n (b) Authorization and Validity of Agreement. The execution, delivery and\n --------------------------------------- \nperformance by GE Investments Sub of this Agreement and the consummation by GE\nInvestments Sub of the transactions contemplated hereby and thereby have been\nduly authorized by all necessary corporate action on the part of GE Investments\nSub. This Agreement has been duly executed and delivered by GE Investments Sub\nand constitutes a valid and legally binding obligation of GE Investments Sub,\nenforceable against GE Investments Sub in accordance with its terms.\n\n \n 39\n\n (c) Governmental Approvals; Consents. Except as described in Schedule\n -------------------------------- --------\n4.1(c), the execution, delivery and performance of this Agreement and the\n------ \nconsummation by GE Investments Sub of the transactions contemplated hereby will\nnot (i) conflict with or result in a breach of any provision of the certificate\nof incorporation or bylaws or other governing documents of GE Investments Sub;\n(ii) require any consent, approval, authorization or permit of, or filing with\nor notification to, any Governmental Authority; (iii) require the consent or\napproval of any Person (other than a Governmental Authority) or violate or\nconflict with, or result in a breach of any provision of, constitute a default\n(or an event which with notice or lapse of time or both would become a default)\nor give to any third party any right of termination, cancellation, amendment or\nacceleration under, or result in the creation of a Lien on any of the assets of\nGE Investments Sub under, any of the terms, conditions or provisions of any\ncontract or license to which GE Investments Sub is a party or by which it or its\nassets or property are bound; or (iv) violate or conflict with any order, writ,\ninjunction, decree, statute, rule or regulation applicable to GE Investments\nSub; other than any consents, approvals, authorizations and permits the failure\nof which to obtain and any violations, conflicts, breaches defaults and other\nmatters set forth pursuant to clauses (ii), (iii) and (iv) above which,\nindividually or in the aggregate, would not reasonably be expected to have a\nMaterial Adverse Effect.\n\n 4.5 Survival of Representations and Warranties. None of the\n ------------------------------------------ \nrepresentations and warranties given by the parties in Article IV and in the\n ---------- \ncertificates delivered pursuant to Article VII shall survive the Closing other\n ----------- \nthan the representations and warranties set forth in Section 4.1(c)(iii) and\n ------------------- \nSection 4.1(v).\n-------------- \n\n 4.6 No Other Representation or and Warranties. Except for the\n ----------------------------------------- \nrepresentations and warranties set forth in this Article IV, the parties hereto\n ---------- \nmake no other representations or warranties, express or implied.\n\n\n ARTICLE VI\n\n CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME\n -------------------------------------------\n\n\n 5.1 Conduct of the Business of Xoom Pending the Closing. Xoom agrees\n ---------------------------------------------------- \nthat except with the prior written consent of NBC and except as may be expressly\npermitted by this Agreement or as set forth on Schedule 5.1, prior to the\n ------------ \nClosing, it shall, and shall cause, its Subsidiaries to operate their businesses\nonly in the usual, regular and ordinary manner, on a basis consistent with past\npractice and, to the extent consistent with such operation, use its reasonable\nefforts to preserve its present business organization intact, keep available the\nservices of its present employees, preserve its present business relationships\n(consistent with past practice) and maintain all rights, privileges and\nfranchises in the normal conduct of Xoom's businesses. Without limitation of the\nforegoing, from the date hereof until the Effective Time, except as expressly\npermitted by this Agreement or as set forth on Schedule 5.1, Xoom shall not:\n ------------ \n\n (a) amend its certificate of incorporation or bylaws;\n\n \n 40\n\n (b) issue, purchase or redeem, or authorize or propose the issuance,\npurchase or redemption of, or declare or pay any dividend with respect to, any\nshares of capital stock of Xoom or any class of securities convertible into, or\nrights, warrants or options to acquire, any such shares of other convertible\nsecurities other than (i) issuances of Xoom Stock pursuant to Xoom Options\noutstanding on the date hereof, the Option Agreement or the obligations to issue\nXoom Stock set forth on Schedule 4.3(h) and (ii) (x) Xoom Options with an\n --------------- \nexercise price of not less than the fair market value on the date of grant and\nvesting over not less than 2 years to be issued to employees currently holding\nXoom Plan Options exercisable in the aggregate for not more than that number of\nshares of Xoom Plan Stock that equals 15% of the shares of Xoom stock for which\nXoom Plan Options will remain unvested and nonexercisable after giving effect to\nthe acceleration of vesting described in Section 6.8; and (y) Xoom Options with\n ----------- \nan exercise price of not less than 85% of the fair market value on the date of\ngrant, and vesting over not less than 3 years, to be issued to employees\ncurrently holding Xoom Non-Plan Options exercisable in the aggregate for not\nmore than the lesser of (i) that number of shares of Xoom that equals two times\nthe number of shares of Xoom for which Xoom Non-Plan Options will remain\nunvested and nonexercisable and terminate after giving effect to the\nacceleration of vesting described in Section 6.8 or (ii) 150,000 shares of Xoom.\n ----------- \n\n (c) adopt any stockholders rights plan or take any other action which\nwould restrict or impede the ability of NBC or its Subsidiaries to acquire any\nshares of Xoom Stock to the extent permitted by the terms hereof;\n\n (d) acquire any business or any assets (other than inventory and any\nother assets acquired solely for use in an existing business in the ordinary\ncourse consistent with past practice of such business) or acquire any minority\ninvestment in any Person, except for any acquisitions for consideration not in\nexcess of $10,000,000 individually or $25,000,000 in the aggregate taken\ntogether with all such acquisitions.\n\n (e) dispose of any business or any assets (other than inventory and\nany other assets acquired solely for use in an existing business in the ordinary\ncourse consistent with past practice of such business) or dispose of any\nminority investment in any Person, except for any dispositions having a fair\nmarket value not in excess of $10,000,000 individually or $25,000,000 in the\naggregate taken together with all such dispositions;\n\n (f) except as otherwise permitted by this Section 5.1, make any\n ----------- \nexpenditures other than in the ordinary course of business and in any event not\nin excess of the aggregate budgeted expenditures provided in the Xoom Budget;\n\n (g) except as otherwise permitted by Section 5.1(d),enter into any\n -------------- \ntransaction involving a cash expenditure other than in the ordinary course of\nbusiness consistent with past practice;\n\n (h) except as otherwise permitted by this Section 5.1, enter into\n ----------- \nany transaction involving the incurrence of indebtedness other than in the\nordinary course of business consistent with past practice;\n\n \n 41\n\n (i) enter into any transaction involving the merger, consolidation or\nsale of all or substantially all of the assets of Xoom;\n\n (j) file any voluntary petition for bankruptcy or receivership of\nXoom or fail to oppose any other person's petition for bankruptcy or action to\nappoint a receiver of Xoom;\n\n (k) except as required by applicable law, as contemplated in this\nAgreement or the Xenon 2 Merger Agreement or to the extent required under\nexisting employee benefit plans, agreements or arrangements as in effect on the\ndate of this Agreement, (A) increase the compensation or fringe benefits of any\npresent or former director, officer or employee of Xoom or its Subsidiaries,\nexcept for increases, in the ordinary course of business, in salary or wages of\nemployees who are not officers, (B) except in the ordinary course of business\ngrant any severance or termination pay to any present or former director,\nofficer or employee of Xoom or its Subsidiaries or (C) enter into or amend or\nterminate any collective bargaining, bonus, profit sharing, thrift,\ncompensation, pension, retirement, deferred compensation, employment,\ntermination, severance or other plan, agreement, trust, fund, policy or\narrangement for the benefit of any present or former director, officer or\nemployee of Xoom or its Subsidiaries;\n\n (l) allow any payables or other obligations to become delinquent,\nexcept where the amount or validity of such payables or obligations is currently\nbeing contested in good faith by appropriate proceedings and reserves in\nconformity with GAAP with respect thereto have been recorded, or change or\nmodify the usual, regular and ordinary manner of collecting receivables from\npast practice;\n\n (m) except with respect to transactions permitted by Section 5.1(d)\n --------------\nand Section 5.1(e), enter into any contract, agreement, joint venture or other\n -------------- \ncommitment that is not terminable in Xoom's sole discretion on or prior to one\nyear from the date hereof without payment of any termination fee or penalty;\n\n (n) settle any claim, action or proceeding involving money damages in\nexcess of $50,000 in the aggregate or that could result in any injunction or\nprohibition on any part of the business of Xoom;\n\n (o) amend, supplement or otherwise modify the Xenon 2 Merger Agreement\nor terminate the Xenon 2 Merger Agreement other than in accordance with Section\n9.1(f) thereof; or\n\n (p) authorize any of, or commit or agree to take any of, the foregoing\nactions.\n\n 5.2 Conduct of the Business of SNAP Pending the Closing. NBC agrees\n --------------------------------------------------- \nthat except with the prior written consent of Xoom, and except as may be\nexpressly permitted or contemplated by this Agreement or as set forth on\nSchedule 5.2, prior to the Closing Date, NBC shall use reasonable efforts to\n------------ \ncause each of SNAP and its Subsidiary to be operated only in the usual, regular\nand ordinary manner, on a basis consistent with past practice and, to the extent\nconsistent with such operation, use its reasonable efforts to preserve its\npresent business \n\n \n 42\n\norganization intact, keep available the services of its present\nemployees, preserve its present business relationships and maintain all rights,\nprivileges and franchises necessary or desirable in the normal conduct of SNAP's\nbusinesses. Without limiting the generality of the foregoing, from the date\nhereof until the Closing, except as expressly permitted or contemplated by this\nAgreement or as set forth on Schedule 5.2, NBC shall use reasonable efforts not\n ------------ \nto permit SNAP to:\n\n (a) amend the SNAP LLC Agreement;\n\n (b) issue, purchase or redeem, or authorize or propose the issuance,\npurchase or redemption of, or make any distribution with respect to, any equity\ninterests of SNAP or any class of securities convertible into, or rights,\nwarrants or options to acquire, any such equity interests or other convertible\nsecurities other than (i) pursuant to employee options outstanding on the date\nhereof or (ii) SNAP Options with an exercise price of not less than the fair\nmarket value on the date of grant to be issued to employees exercisable in the\naggregate for not more than 195,132 units of SNAP;\n\n (c) acquire any business or any assets (other than inventory and any\nother assets acquired solely for use in an existing business in the ordinary\ncourse consistent with past practice of such business) or acquire any minority\ninvestment in any Person, except for any acquisitions for consideration not in\nexcess of $10,000,000 individually or $25,000,000 in the aggregate taken\ntogether with all such acquisitions;\n\n (d) dispose of any business or any assets (other than inventory and\nany other assets acquired solely for use in an existing business in the ordinary\ncourse consistent with past practice of such business) or dispose of any\nminority investment in any Person, except for any dispositions having a fair\nmarket value not in excess of $10,000,000 individually or $25,000,000 in the\naggregate taken together with all such dispositions;\n\n (e) except as otherwise permitted by this Section 5.2, make any\n ----------- \nexpenditures other than in the ordinary course of business and in any event not\nin excess of the aggregate budgeted expenditures provided in the SNAP Budget;\n\n (f) except as otherwise permitted by Section 5.2(c), enter into any\n -------------- \ntransaction involving a cash expenditure by SNAP other than in the ordinary\ncourse of business consistent with past practice;\n\n (g) except as otherwise permitted by this Section 5.2, enter into any\n ----------- \ntransaction involving the incurrence of indebtedness by SNAP other than in the\nordinary course of business consistent with past practice;\n\n (h) file any voluntary petition for bankruptcy or receivership of SNAP\nor fail to oppose any other person's petition for bankruptcy or action to\nappoint a receiver of SNAP;\n\n \n 43\n\n (i) except with respect to transactions permitted by Section 5.2 (c)\n ---------------\nand Section 5.2(d), enter into any contract, agreement, joint venture or other\n -------------- \ncommitment that is not terminable in SNAP's sole discretion on or prior to one\nyear from the date hereof without payment of any termination fee or penalty;\n\n (j) except as required by applicable law, as contemplated in this\nAgreement or the Xenon 2 Merger Agreement or to the extent required under\nexisting employee benefit plans, agreements or arrangements as in effect on the\ndate of this Agreement, (A) increase the compensation or fringe benefits of any\nemployee of SNAP, except for increases, in the ordinary course of business, in\nsalary or wages of employees who are not officers, (B) except in the ordinary\ncourse of business grant any severance or termination pay to any employee of\nSNAP, (C) hire, except in the ordinary course of business, any new employees or\nconsultants, or (D) enter into or amend or terminate any collective bargaining,\nbonus, profit sharing, thrift, compensation, pension, retirement, deferred\ncompensation, employment, termination, severance or other plan, agreement,\ntrust, fund, policy or arrangement for the benefit of any employee of SNAP;\n\n (k) allow any payables or other obligations to become delinquent,\nexcept where the amount or validity of such payables or obligations is currently\nbeing contested in good faith by appropriate proceedings and reserves in\nconformity with GAAP with respect thereto have been recorded, or change or\nmodify the usual, regular and ordinary manner of collecting receivables from\npast practice;\n\n (l) except as otherwise permitted by Section 5.2(d), dispose of or\n -------------- \nabandon outside the ordinary course of business any assets of SNAP that are\nmaterial, individually or in the aggregate, to SNAP and not transfer any rights\nof material value of SNAP;\n\n (m) permit or allow any of the material assets of SNAP to become\nsubject to any Liens, except for Permitted Liens or waive any material claims or\nrights of SNAP;\n\n (n) except as otherwise permitted by Section 5.2(c), acquire or agree\n -------------- \nto acquire outside the ordinary course of business any assets that are material,\nindividually or in the aggregate, to SNAP;\n\n (o) enter into any transaction involving the merger, consolidation or\nsale of all or substantially all of the assets of SNAP;\n\n (p) settle any claim, action or proceeding involving money damages in\nexcess of $50,000 in the aggregate or that could result in any injunction or\nprohibition on any part of the business of SNAP; or\n\n (q) authorize any of, or commit or agree to take any of, the foregoing\nactions.\n\n 5.3 Conduct of the NBC Multimedia Businesses Pending the Closing. NBC\n ------------------------------------------------------------- \nagrees that except with the prior written consent of Xoom and except as may be\nexpressly permitted or \n\n \n 44\n\ncontemplated by this Agreement or as set forth on Schedule 5.2, prior to the\n ------------\nClosing Date, it shall, and shall cause its Subsidiaries to, operate the NBC\nMultimedia Businesses only in the usual, regular and ordinary manner, on a basis\nconsistent with past practice and, to the extent consistent with such operation,\nuse its reasonable efforts to preserve the NBC Multimedia Businesses' present\nbusiness organization intact, keep available the services of the NBC Multimedia\nBusinesses' present employees, preserve their present business relationships and\nmaintain all rights, privileges and franchises necessary or desirable in the\nnormal conduct of the NBC Multimedia Businesses. NBC shall not cause or permit\nNMC to conduct any business or take other actions other than for the purposes of\neffectuating the transactions contemplated hereby. Without limiting the\ngenerality of the foregoing, from the date hereof until the Closing, except as\nexpressly permitted or contemplated by this Agreement or as set forth on\nSchedule 5.2, NBC shall not:\n------------ \n \n (a) except as required by applicable law or to the extent required\nunder existing employee benefit plans, agreements or arrangements as in effect\non the date of this Agreement or as contemplated by this Agreement, (A) increase\nthe compensation or fringe benefits of any Transferred Employee (including, for\nall purposes in this section, persons eligible to become Transferred Employees\nupon occurrence of future events such as the acceptance of offers of\nemployment), except for increases, in the ordinary course of business, in salary\nor wages of employees who are not officers, (B) except in the ordinary course of\nbusiness grant any severance or termination pay to any Transferred Employee or\n(C) enter into or amend or terminate any collective bargaining, bonus, profit\nsharing, thrift, compensation, pension, retirement, deferred compensation,\nemployment, termination, severance or other plan, agreement, trust, fund, policy\nor arrangement for the benefit of any Transferred Employee;\n\n (b) transfer, dispose of or abandon any of the material NBC Multimedia\nAssets, other than in the ordinary course of business, consistent with past\npractice;\n\n (c) permit or allow any of the NBC Multimedia Assets to become subject\nto any Liens, except for Permitted Liens or waive any material claims or rights\nrelating to the NBC Multimedia Assets;\n\n (d) transfer any rights of material value included in the NBC\nMultimedia Assets;\n\n (e) authorize any of, or commit or agree to take any of, the foregoing\nactions.\n\n 5.4 Access to Information. From the date hereof to the Closing Date,\n --------------------- \neach of Xoom and NBC and their respective Subsidiaries shall afford the\nofficers, employees, auditors and other agents of NBC and Xoom reasonable access\nduring normal business hours to the officers, employees, properties, offices,\nplants and other facilities of (i) SNAP and the NBC Multimedia Businesses, in\nthe case of NBC and (ii) Xoom and its Subsidiaries, in the case of Xoom and\nXenon 2, and to the contracts, commitments, books, records and Tax Returns\nrelating thereto, and shall furnish such Persons all such documents and such\nfinancial, operating and other data and information regarding such businesses\nand Persons that are in the possession of such Person \n\n \n 45\n\nas NBC or Xoom, as applicable, through their respective officers, employees or\nagents may from time to time reasonably request. All such information, as well\nas any information provided prior to the date hereof, shall be used only for the\npurposes of the transactions contemplated hereby and, unless required by\nsubpoena or otherwise required by law, the parties agree not to disclose to any\nthird party (other than their respective professional advisors) any portion of\nthe information so provided which constitutes confidential information (i.e.,\ninformation that is not otherwise publicly available). The confidential\ninformation shall not, without the other parties' prior written consent, be\ndisclosed to third parties. The parties will disclose the information internally\nonly to persons who require knowledge thereof for the purposes of the\ntransactions contemplated hereby.\n\n 5.5 No Solicitation. (a) From and after the date hereof until the\n --------------- \nearlier of the Effective Time or the termination of this Agreement in accordance\nwith its terms, Xoom shall not, nor shall it permit any of its Subsidiaries to,\nnor shall it authorize or permit any officer, director or employee of, or any\ninvestment banker, attorney or other advisor or representative of, Xoom or any\nof its Subsidiaries to, directly or indirectly, (i) take any action to solicit,\ninitiate, encourage or knowingly facilitate any Material Transaction Proposal\n(as defined below) or the submission of a Material Transaction Proposal or (ii)\nenter into or participate in any discussions or negotiations regarding, or\nfurnish to any person any information with respect to, a Material Transaction\nProposal; provided that, prior to obtaining the affirmative vote of the holders\n -------- \nof a majority of the outstanding shares of common stock of Xoom to adopt the\nXenon 2 Merger Agreement (the \"Xoom Stockholder Approval\" and, together with the\n ------------------------- \nXenon 2 Stockholder Approval, the \"Stockholder Approvals\"), in response to an\n --------------------- \nunsolicited bona fide Takeover Proposal, Xoom may, to the extent that the Board\n ---- ---- \nof Directors of Xoom determines in good faith based on the advice of outside\nlegal counsel that such action is required to comply with their fiduciary duties\nunder applicable law, (A) furnish information with respect to Xoom and its\nSubsidiaries to the person making such Takeover Proposal and its representatives\nand discuss such information with such person and its representatives and (B)\nparticipate in negotiations regarding such Takeover Proposal. Xoom will\npromptly notify NBC of receipt of any request for information or any Material\nTransaction Proposal, the material terms and conditions of such request or\nMaterial Transaction Proposal and the identity of the person making any such\nrequest or Material Transaction Proposal, and will keep NBC fully informed on a\ncurrent basis of the status and details of any such request or Material\nTransaction Proposal, provided that, prior to providing any information to any\n -------- \nPerson or participating in negotiations with any Person, Xoom shall have\nreceived an executed confidentiality agreement. Xoom will immediately cease and\ncause to be terminated any existing activities, discussions and negotiations\nconducted heretofore with respect to any Material Transaction Proposal.\n\n (b) From and after the date hereof until the earlier of the Effective\nTime or the termination of this Agreement in accordance with its terms, the\nBoard of Directors of Xoom shall not (i) approve or recommend or propose\npublicly to approve or recommend any Material Transaction Proposal, (ii) cause\nor agree to cause Xoom or any of its Subsidiaries to enter into any agreement\n(including, without limitation, any letter of intent or agreement in principle)\nrelated to a Material Transaction Proposal or (iii) prior to the Xoom\nStockholder Approval, withdraw or modify, in a manner adverse to NBC, the\napproval or recommendation of the Board \n\n \n 46\n\nof Directors of Xoom for the adoption of the Xenon 2 Merger Agreement or vote in\nfavor of Xoom, as sole stockholder of Xenon 2, adopting the NMC Merger Agreement\nat the Xenon 2 Stockholder Meeting. Notwithstanding the foregoing, if the Board\nof Directors of Xoom receives a Takeover Proposal without having violated\nSection 5.5(a) hereof, the Board of Directors of Xoom may, prior to obtaining\n-------------- \nthe Xoom Stockholder Approval, to the extent it determines in good faith based\non the advice of outside legal counsel that such action is required to comply\nwith their fiduciary duties under applicable law, take any action specified in\nclauses (i), (ii) or (iii) above with respect to such Takeover Proposal, but in\neach case only (x) at a time that is at least five (5) business days after\nreceipt by NBC of written notice from Xoom advising NBC that the Board of\nDirectors of Xoom has resolved to take such action and (y) if Xoom\nsimultaneously therewith terminates this Agreement pursuant to Section 9.1(g)\n --------------\nhereof. Nothing contained in this Agreement shall prohibit Xoom or its board of\ndirectors from complying with Rules 14D-9 and 14e-2 under the Exchange Act with\nrespect to any Takeover Proposal.\n\n (c) As used herein, \"Material Transaction Proposal\" means any\n ----------------------------- \ninquiry, proposal or offer from any Person relating to (i) the direct or\nindirect acquisition or purchase of 20% or more of the assets (based on the fair\nmarket value thereof) of Xoom and its Subsidiaries, taken as a whole, or of 20%\nor more of any class of equity securities of Xoom or any of its Subsidiaries or\nany tender offer or exchange offer (including by Xoom or its Subsidiaries) that\nif consummated would result in any person beneficially owning 20% or more of any\nclass of equity securities of Xoom or any of its Subsidiaries, or (ii) any\nmerger, consolidation, business combination, sale of all or substantially all\nassets, recapitalization, liquidation, dissolution or similar transaction\ninvolving Xoom or any of its Subsidiaries other than the Transactions\ncontemplated by this Agreement; provided, however, that in no event shall any\n -------- ------- \nmerger, consolidation, sale or similar transaction involving only Xoom and one\nor more of its wholly-owned subsidiaries or involving only any two or more of\nsuch wholly-owned subsidiaries be deemed to be a Material Transaction Proposal\nif such transaction is not entered into in violation of the terms of this\nAgreement.. As used herein, \"Takeover Proposal\" means any inquiry, proposal or\n ----------------- \noffer from any Person relating to (A) any of the matters set forth in clause (i)\nof the definition of Material Transaction Proposal but replacing \"20%\" with\n\"50%\" each place \"20%\" is used in such definition, (B) a sale of all or\nsubstantially all of the assets of Xoom and its Subsidiaries or (C) a merger or\nconsolidation of Xoom as a result of which the stockholders of Xoom immediately\nprior to such transaction would not beneficially own immediately after such\ntransaction 50% or more of the resulting or surviving entity (or the parent\nthereof).\n\n (d) The parties acknowledge that there may be no adequate remedy at\nlaw for a breach of Section 5.5 and that money damages may not be an adequate\n ----------- \nremedy for breach of such Section. Therefore, the parties agree that NBC and\nXoom each shall have the right, in addition to any other rights it may have, to\ninjunctive relief and specific performance in the event of any breach of this\nSection 5.5. The remedy set forth in the preceding two sentences is cumulative\n----------- \nand shall in no way limit any other remedy any party hereto has at law, in\nequity or pursuant hereto.\n\n 5.6 Non-Solicitation of Employees. The parties hereto agree that\n ----------------------------- \nbeginning on the date hereof and continuing until one year after the Effective\nTime, no party shall, directly or \n\n \n 47\n\nindirectly, solicit for employment any person who is now employed by any of the\nother parties in an executive position, technical position or is otherwise\nconsidered a key employee; provided, however, that a party shall not be\n -------- ------- \nprecluded from hiring any such employee who (i) initiates discussions regarding\nsuch employment without any direct or indirect solicitation by such party, (ii)\nresponds to any general public advertisement placed by such party or (iii) has\nbeen terminated by the other party prior to commencement of employment\ndiscussions between such party and the employee.\n\n 5.7 Amendments to Schedules. If no later than five business days prior to\n ----------------------- \nthe Closing Date, Xoom, Xenon 2, NBC, SNAP or GE Investments Sub becomes aware\nof any fact or circumstance (whether or not it existed prior to the date hereof)\nwhich would make any representation, warranty, covenant or agreement of such\nparty untrue, then such party shall be permitted to amend any Schedule to this\nAgreement so as to identify such fact or circumstance to the extent necessary to\nmake such representation, warranty, covenant or agreement true and correct;\nprovided that if any such amendment, individually or in the aggregate with all\n-------- \nsuch other amendments, discloses facts and circumstances that constitute a\nMaterial Adverse Effect, then notwithstanding anything to the contrary in this\nAgreement, the other party (which shall be Xoom in the case of amendments by\nNBC, SNAP or GE Investments Sub and shall be NBC in the case of amendments by\nXoom or Xenon 2) shall have the right to terminate this Agreement.\nNotwithstanding the foregoing, any change to a Schedule that refers solely to an\nitem previously disclosed in the SEC Documents shall not be deemed to have a\nMaterial Adverse Effect on Xenon if such reference is to a specific section of a\nspecific SEC Document.\n\n\n ARTICLE VII\n\n OTHER AGREEMENTS\n ----------------\n\n 6.1 Registration Statement; Preparation of Proxy Statement. (a) As\n ------------------------------------------------------ \nsoon as practicable after the execution of this Agreement, Xoom shall prepare\nand cause to be filed with the SEC preliminary proxy materials (the \"Proxy\n -----\nStatement\") for the solicitation of approval by the stockholders of Xoom of the\n--------- \nXenon 2 Merger Agreement and of Xoom, in its capacity as sole stockholder of\nXenon 2, approving this Agreement, the Merger and the other transactions\ncontemplated hereby and the other Implementing Agreements as may reasonably\nrequire approval of Xenon 2's stockholders. Xoom shall cause Xenon 2 to include\nthe Proxy Statement as part of the prospectus to be included in the registration\nstatement on Form S-4 (the \"Form S-4\") that Xenon 2 is preparing and filing with\n -------- \nrespect to the shares of Class A Common Stock issuable pursuant to the\ntransactions contemplated by the Xenon 2 Merger Agreement. Each of Xenon 2 and\nXoom shall cause the Form S-4 and the Proxy Statement related thereto to comply\nwith applicable law and the rules and regulations promulgated by the SEC, to\nrespond promptly to any comments of the SEC or its staff and to have such\nregistration statement declared effective under the Securities Act as promptly\nas practicable after it is filed with the SEC and Xoom shall use its best\nefforts to cause the proxy statement to be mailed to Xoom's stockholders as\npromptly as practicable after the registration statement is declared effective\nunder the Securities Act. Each of the parties hereto shall promptly furnish to\nthe other party all information concerning itself, its \n\n \n 48\n\nstockholders and its Affiliates that may be required or reasonably requested in\nconnection with any action contemplated by this Section 6.1. If any event\n -----------\nrelating to any party occurs, or if any party becomes aware of any information,\nthat should be disclosed in an amendment or supplement to the Form S-4 or the\nProxy Statement, then such party shall inform the other thereof and shall\ncooperate with each other in filing such amendment or supplement with the SEC\nand, if appropriate, in mailing such amendment or supplement to the stockholders\nof Xoom. The Proxy Statement shall include the recommendation of the Board of\nDirectors of Xoom in favor of the adoption of this Agreement and the Xenon 2\nMerger Agreement and the approval of the transactions contemplated hereby and\nthereby.\n\n (b) Prior to the Effective Time, Xoom shall cause Xenon 2 to use\nreasonable efforts to obtain all regulatory approvals needed to ensure that the\nClass A Common Stock to be issued in connection with the transactions\ncontemplated the Xenon 2 Merger Agreement (i) will be registered or qualified\nunder the \"blue sky\" laws of every jurisdiction of the United States in which\nany registered holder of the outstanding Xoom common stock who is receiving\nregistered shares of Class A Common Stock has an address of record or be exempt\nfrom such registration; and (ii will be approved for quotation at the Effective\nTime on Nasdaq.\n\n (c) Each of Xoom, Xenon 2 and NBC agrees with respect to the\ninformation to be supplied by such party that: (i) none of the information to be\nsupplied by such party or its Affiliates for inclusion in the Form S-4 will, at\nthe time the Form S-4 becomes effective under the Securities Act, contain any\nuntrue statement of a material fact or omit to state any material fact required\nto be stated therein or necessary in order to make the statements therein, in\nlight of the circumstances under which they are made, not misleading; (ii none\nof the information to be supplied by such party or its Affiliates for inclusion\nin the Proxy Statement will, at the time the Proxy Statement is mailed to the\nstockholders of Xoom or as of the Effective Time, contain any untrue statement\nof a material fact or omit to state any material fact required to be stated\ntherein or necessary in order to make the statements therein, in light of the\ncircumstances under which they were made, not misleading; and (ii as to matters\nrespecting such party, the Proxy Statement and the Form S-4 will comply as to\nform in all material respects with the provisions of the Securities Act and the\nExchange Act, as applicable, and the rules and regulations promulgated by the\nSEC thereunder.\n\n 6.2 Stockholder Meeting. Xoom shall promptly after the date hereof take\n ------------------- \nall action necessary in accordance with applicable law and its certificate of\nincorporation and bylaws to duly call, hold and convene a meeting of Xoom's\nstockholders (the \"Xoom Stockholder Meeting\") and a meeting of Xoom 2's\n ------------------------ \nstockholder (the \"Xenon 2 Stockholder Meeting). Except as required by the SEC\n ---------------------------- \nor applicable court order, Xoom shall not postpone or adjourn (other than for\nthe absence of a quorum) the Xoom Stockholder Meeting or the Xenon 2 Stockholder\nMeeting without the consent of NBC. Notwithstanding anything in this Agreement\nto the contrary, Xenon 2 shall, and Xoom shall cause Xenon 2, to duly call, hold\nand convene the Xenon 2 Stockholder Meeting immediately after Xoom Stockholders\nMeeting, and Xoom, in its capacity as sole stockholder of Xenon 2, shall vote\nwith respect to the adoption of this Agreement at the Xenon 2 Stockholder\nMeeting as instructed by the votes of at least a majority of the Xoom\nStockholders at the Xoom Stockholder Meeting. Each of Xenon 2 and Xoom shall\nnot \n\n \n 49\n\nauthorize or permit (i) the Xenon 2 Stockholder Meeting to occur at or after\nthe effectiveness of the merger contemplated by the Xenon 2 Merger Agreement or\n(ii) the adoption of this Agreement by the stockholder of Xenon 2 to be effected\nby a written consent to action without a meeting. Neither NBC, Xenon 2 nor Xoom\nshall in any way challenge the validity, enforceability or effectiveness of the\nvoting agreements or proxies entered into by certain stockholders of Xoom in\nconnection with this Agreement or the Xenon 2 Merger Agreement and the\ntransactions contemplated hereby and thereby. Xoom shall take all other action\nnecessary or advisable to secure the Stockholder Approvals subject to the\nfiduciary duty set forth in Section 5.5. Without limiting the generality of the\n ----------- \nforegoing but subject to its rights to terminate the Agreement pursuant to\n \nSection 9.1(g), Xoom agrees that its obligations pursuant to this Section 6.2\n-------------- -----------\nshall not be affected by the commencement, public proposal, public disclosure or\ncommunication to Xoom of any Material Transaction Proposal.\n\n 6.3 Public Statements. Before any party or any Affiliate of such party\n ----------------- \nshall release any information concerning this Agreement or the matters\ncontemplated hereby which is intended for or may result in public dissemination\nthereof, such party shall cooperate with the other parties, shall furnish drafts\nof all documents or proposed oral statements to the other parties, provide the\nother parties the opportunity to review and comment upon any such documents or\nstatements and shall not release or permit release of any such information\nwithout the consent of the other parties, except to the extent required by\napplicable law or the rules of any securities exchange or automated quotation\nsystem on which its securities or those of its Affiliate are traded.\n\n 6.4 Reasonable Commercial Efforts. (a) Subject to the terms and\n ------------------------------ \nconditions provided in this Agreement, each party shall use reasonable\ncommercial efforts to take promptly, or cause to be taken, all actions, and to\ndo promptly, or cause to be done, all things necessary, proper or advisable\nunder applicable laws and regulations to consummate and make effective the\ntransactions contemplated hereby, to obtain all necessary waivers, consents and\napprovals and to effect all necessary registrations and filings, including,\nwithout limitation, an appropriate filing of a Notification and Report Form\npursuant to the HSR Act with respect to the transactions contemplated hereby,\nand the filings and consents set forth on Schedule 6.4 hereto (the \"Required\n ------------ --------\nConsents\") and to remove any injunctions or other impediments or delays, legal\n-------- \nor otherwise, in order to consummate and make effective the transactions\ncontemplated by this Agreement for the purpose of securing to the parties hereto\nthe benefits contemplated by this Agreement; provided that notwithstanding\n -------- \nanything to the contrary in this Agreement, no party nor any of their Affiliates\nshall be required to make any disposition, including, without limitation, any\ndisposition of, or any agreement to hold separate, any Subsidiary, asset or\nbusiness, and no party hereto nor any of their Affiliates shall be required to\nmake any payment of money nor shall any party or its Affiliates be required to\ncomply with any condition or undertaking or take any action which, individually\nor in the aggregate, would materially adversely affect the economic benefits to\nsuch party of the transactions contemplated hereby and the Implementing\nAgreements, taken as a whole or adversely affect any other business of such\nparty or its Affiliates.\n\n \n 50\n\n (b) Each of the parties hereto shall execute and cause its\nSubsidiaries to execute on or prior to the Closing Date each Implementing\nAgreement to which it or they are a party on the terms set forth in the relevant\nExhibits hereto.\n\n (c) Each of the parties hereto agrees, from time to time, to execute\nand deliver, or use reasonable commercial efforts to cause to be executed and\ndelivered, such additional instruments, certificates or documents (including\nbills of sale and assignment and assumption agreements), and take all such\nactions, reasonably necessary to implement or effectuate the transactions\ncontemplated by this Agreement.\n\n 6.5 Notification of Certain Matters. Each party to this Agreement shall\n ------------------------------- \ngive prompt notice to each other party of (i) the occurrence or non-occurrence\nof any event, the occurrence or non-occurrence of which is likely to cause any\nrepresentation or warranty of any party contained in this Agreement to be untrue\nor inaccurate at or prior to the Effective Time and (ii) any failure of any\nparty to comply with or satisfy any covenant, condition or agreement to be\ncomplied with or satisfied by it hereunder; provided, however, that the delivery\n -------- ------- \nof any notice pursuant to this Section 6.5 shall not limit or otherwise affect\n ----------- \nany remedies available to the parties receiving such notice. No disclosure by\nany party pursuant to this Section 6.5, however, shall be deemed to amend or\n ----------- \nsupplement the disclosures set forth on the Schedules to Article IV or prevent\n ---------- \nor cure any misrepresentations, breach of warranty or breach of covenant.\n\n 6.6 Xenon 2 Directors. (a) NBC shall have the right to select six\n ----------------- \npersons to serve as members of the Board of Directors of Xenon 2 to be elected\nby the holders of the Class B Common Stock, voting separately as a class (such\npersons, or any replacement persons, the \"Nominees\"), and Xoom and Xenon 2 shall\n -------- \ncause the Nominees to be appointed to the Board of Directors of Xenon 2 (to the\nextent the Nominees so consent) as of the Effective Time.\n\n (b) Xoom and Xenon 2 shall also cause to be appointed to the Board of\nDirectors of Xenon 2 (to the extent they so consent) as of the Effective Time\nthe current Chairman of the Board of Xoom, the four current outside directors of\nXoom and an additional person designated by Xoom.\n\n (c) Xoom and Xenon 2 shall also cause to be appointed to the Board of\nDirectors of Xenon 2 as of the Effective Time one additional person mutually\nagreed upon by NBC and Xoom who shall not be affiliated with either party.\n\n (d) Xenon 2 will cause the Surviving Corporation to indemnify each\nperson who is now, or has been at any time prior to the date of this Agreement,\nor who becomes prior to the Effective Time, a director or officer of NMC from\nand after the Effective Time (individually an \"Indemnified Party\" and\n ----------------- \ncollectively the \"Indemnified Parties\"), with respect to acts or omissions\n ------------------- \noccurring prior to the Effective Time to the full extent provided as of the date\nhereof under the certificate of incorporation, bylaws, other similar\norganizational documents of NMC or applicable law. The rights under this\nSection 6.6(d) are contingent upon the occurrence of, and will survive\n-------------- \nconsummation of, the transactions contemplated hereby and are expressly intended\n\n \n 51\n\nto benefit each Indemnified Party each of whom shall have third party\nbeneficiary rights hereunder.\n\n 6.7 Employee Matters.\n ---------------- \n\n (a) Employees and Offers of Employment. Between the date of this\n ---------------------------------- \nAgreement and the Closing Date, Xenon 2 shall offer employment as of the Closing\nDate to each individual who is listed on Schedule 6.7(a) and who, on the Closing\n --------------- \nDate, is employed by NBC or its Affiliates or who is absent from work by reason\nof vacation, sick leave, short-term disability or due to authorized leave of\nabsence or military service; provided that for any such employee who, as of the\n -------- \nClosing Date, is absent from work due to sick leave, short-term disability or\ndue to authorized leave of absence or military service, such offer of employment\nshall be effective as of the date such employee is able to commence active\nemployment with Xenon 2. Each offer of employment shall include salary, title\nand level of responsibility which are no less favorable in the aggregate than\nthose in effect for such employee on the date of this Agreement; provided that\n -------- \nnothing shall prohibit Xenon 2 from terminating the employment of any\nTransferred Employee at any time. Such employees who accept and commence\nemployment with Xenon 2 are herein collectively referred to as \"Transferred\n -----------\nEmployees\".\n--------- \n\n (b) Employee Benefit Plans\n ----------------------\n\n (i) As of the Closing Date, except as otherwise expressly provided\nunder the applicable employee benefit plan of NBC or its Affiliates (the \"NBC\n ---\nPlans\") the Transferred Employees shall cease to accrue further benefits under\n----- \nNBC Plans and shall immediately commence participation in the Xenon 2 plans\n(which, except as otherwise provided in this Agreement, shall initially be the\nXoom Plans) on a basis no less favorable than similarly situated employees of\nXenon 2 or Xoom. Xenon 2 or Xoom shall cause each Xenon 2 Plan to treat the\nprior service of each Transferred Employee with NBC or its affiliates as service\nrendered to Xenon 2 or Xoom for purposes of eligibility, vesting and benefit\naccrual (but not for purposes of benefit accruals) under any defined benefit\nplan to the same extent such service was taken into consideration under\ncomparable NBC Plans.\n\n (ii) NBC shall retain responsibility for and continue to pay all\nmedical, life insurance, disability and other welfare plan expenses and benefits\nfor each Transferred Employee with respect to claims incurred by such Employees\nor their covered dependents prior to the Closing Date. Expenses and benefits\nwith respect to claims incurred by Transferred Employees or their covered\ndependents on or after the Closing Date shall be the responsibility of Xenon 2.\nFor purposes of this paragraph, a claim is deemed incurred when the services\nthat are the subject of the claim are performed; in the case of life insurance,\nwhen the death occurs, in the case of long-term disability benefits, when the\ndisability occurs and, in the case of a hospital stay, when the employee first\nenters the hospital.\n\n (iii) With respect to any welfare benefit plans (as defined in section\n3(1) of ERISA) maintained by Xenon 2 or its Subsidiaries for the benefit of\nTransferred Employees and SNAP Employees on and after the Closing Date, Xenon 2\nor its Subsidiaries shall use best efforts \n\n \n 52\n\nto (A) cause there to be waived any pre-existing condition limitations and (B)\ngive effect, in determining any deductible and maximum out-of-pocket\nlimitations, to claims incurred and amounts paid by, and amounts reimbursed to,\nsuch employees with respect to similar plans maintained by NBC for their benefit\nimmediately prior to the Closing Date.\n\n (iv) NBC shall retain all assets and liabilities and obligations under\nNBC Plans with respect to the Transferred Employees. Notwithstanding the\nforegoing, Xenon 2 shall be responsible, with respect to Transferred Employees,\nfor all accrued bonuses for the year of Closing.\n\n (v) With respect to any accrued but unused vacation time to which any\nTransferred Employee is entitled pursuant to the vacation policy applicable to\nsuch Transferred Employee immediately prior to the Closing Date (the \"Vacation\n --------\nPolicy\"), Xenon 2 shall allow such Transferred Employee to use such accrued\n------ \nvacation; provided, however, that if Xenon 2 deems it necessary to disallow such\n -------- ------- \nTransferred Employee from taking such accrued vacation, Xenon 2 shall be liable\nfor and pay in cash to each such Transferred Employee an amount equal to such\nvacation time in accordance with terms of the Vacation Policy.\n\n 6.8 Xenon 2 Options. (a) Prior to the Effective Time, with respect to\n --------------- \neach option to purchase shares of Xenon 2 into which options to purchase shares\nof Xoom (a \"Xoom Option\"), which were granted pursuant to the Xoom 1998 Stock\n ----------- \nIncentive Plan (the \"Xoom Option Plan\") prior to the date hereof, were converted\n ---------------- \n(the \"Converted Xoom Plan Options\"), Xenon 2 shall cause the Administrator (as\n --------------------------- \ndefined in the Xoom Option Plan) to exercise its discretion to provide, and\nshall take any other necessary action to provide, that each Converted Xoom Plan\nOption shall vest and become exercisable with respect to all shares as to which\nsuch options would otherwise have vested within 12 months following the\nEffective Time. With respect to each option to purchase shares of Xenon 2 into\nwhich Xoom Options, which were not granted pursuant to the Xoom Option Plan\nprior to the date hereof, were converted (the \"Converted Xoom Non-Plan\n -----------------------\nOptions\"), Xenon 2 shall take any necessary action to provide that such\nConverted Xoom Non-Plan Options shall to the extent provided in the award\nagreement evidencing such option vest and become exercisable with respect to 75%\nof the then unvested portion of such Converted Xoom Non-Plan Option and any\nportion of a Converted Xoom Non-Plan Option which remains unexercised upon the\noccurrence of the Effective Time shall terminate upon the occurrence of the\nEffective Time. In addition, with respect to each option to purchase shares of\nXenon 2 into which Xoom Options, which were granted after the date hereof, were\nconverted (the \"Converted New Xoom Options\"), Xenon 2 shall cause the\n -------------------------- \nAdministrator to exercise its discretion to provide, and shall take any other\nnecessary action to provide, that each option Converted New Xoom Option shall\nnot immediately vest (but rather, shall vest in accordance with its stated\nvesting schedule) with respect to any of the shares subject thereto. Xenon 2 and\nXoom acknowledge that the transaction contemplated hereby shall constitute a\n\"Corporate Transaction\" for purposes of both the Xoom Option Plan and the\nConverted Xoom Non-Plan Options and the Administrator, the Board of Directors of\nXoom and the Board of Directors of Xenon 2 shall take all necessary action to\neffect the foregoing.\n\n \n 53\n\n (b) In the event that any Xoom employee incurs an excise tax under\nSection 4999 of the Code as a result of the accelerated vesting of the Xoom\nOptions pursuant to Section 6.8(a), Xenon 2 shall make available to such\n -------------- \nemployee a loan (the \"Tax Loan\") in an amount sufficient to pay such excise tax.\n -------- \nThe determination of whether any such excise tax will be payable and the amount\nof such excise tax will be made by Xoom 2's independent auditors. The Tax Loan\nwill (i) have a term of two years, and (ii) bear interest at the lowest\npermissible rate without imputation of income, compounded annually and (iii) to\nthe extent not previously forgiven become immediately due and payable upon the\ntermination of such employee's employment with Xenon 2 and its Affiliates for\ncause or due to such employee's voluntary resignation. The Tax Loan, will be\nforgiven with respect to 1\/24 of the initial principal amount of the Tax Loan\n(together with accrued interest thereon) on the last day of each 1 month\nanniversary of the Effective Time if the employee has remained continually\nemployed with Xenon 2 and its Affiliates through such date or if such employee's\nemployment with Xenon 2 and its Affiliates is terminated without cause or due to\nthe employee's death or disability.\n\n 6.9 SNAP Indebtedness. Immediately following Closing, Xenon 2 will repay\n ----------------- \nand terminate the commitments with respect to the indebtedness for money\nborrowed (including all interest, fees and other amounts payable in respect\nthereof) set forth on Schedule 6.9 and Xenon 2 shall use its best efforts to\n ------------ \ncause the guarantee of such indebtedness by General Electric Company to be fully\nreleased. Neither SNAP nor NBC or any of its Subsidiaries shall be required to\nrepay prior to Closing any indebtedness of SNAP, including any incurred from and\nafter the date hereof in accordance with the terms of this Agreement.\n\n 6.10 Organization of CNBC.com. NBC shall organize an entity and contribute\n ------------------------ \nthe assets, properties and other rights set forth on Schedule 6.10 to such\n ------------- \nentity on or before the Closing Date.\n\n 6.11 Tax Cooperation and Consistent Reporting.\n ---------------------------------------- \n\n (a) Xenon 2 and NBC agree to furnish or cause to be furnished to each\nother, upon request, as promptly as practicable, such information and assistance\nrelating to the Contributed Assets as is reasonably necessary for the filing of\nall Tax Returns, and making of any election related to Taxes, the preparation\nfor any audit by any Tax Authority, and the prosecution or defense of any claim,\nsuit or proceeding relating to any Tax Return. Xenon 2 and NBC will cooperate\nwith each other in the conduct of any audit or other proceeding related to Taxes\nand all other Tax matters relating to the Contributed Assets, and each will\nexecute and deliver such powers of attorney and other documents as are necessary\nto carry out the intent of this Section 6.11.\n ------------ \n\n (b) Unless there has been a Final Determination to the contrary, NBC,\nXenon 2 and Xoom covenant and agree, for all Tax purposes including all Tax\nReturns and any Tax controversies to (and to cause any Affiliate or successor to\ntheir assets or business to) take each of the positions set forth below (and not\nto take any positions inconsistent therewith):\n\n \n 54\n\n (i) The transfer of the Contributed Assets pursuant to the\nAgreement will qualify under Section 351(b) of the Code.\n\n (ii) None of the consideration received for the Contributed Assets\npursuant to the Agreement will be treated as Other Property or Money.\n\n (iii) None of the Class A Common Stock or Class B Common Stock issued\nto NBC or CNET pursuant to the terms of the Agreement will be paid or issued for\nservices.\n\n (iv) The tax basis of each Contributed Asset to be received by Xenon\n2 will be the same as the tax basis of such asset in the hands of the transferor\nincreased by the amount of any gain recognized by the transferor on the transfer\nof such asset.\n\n (v) The holding period of each Contributed Asset will include the\nperiod during which such asset was held by the transferor.\n\n (vi) Neither Xenon 2, Xoom, any affiliate thereof, nor any successor\nto their assets or businesses will be entitled to claim any deduction in respect\nof any assumed Liability to the extent previously deducted by the transferor.\n\n (c) Xenon 2 represents, covenants and agrees that (A) it has no\nplan or intention to (i) issue additional shares of stock after the Merger, or\ntake any other action, that would result in NBC, NBC Multimedia, CNBC, CNET and\nthe Xoom shareholders losing control of Xenon 2, (ii) liquidate or merge Xenon\n2; (iii) sell or otherwise dispose of any of its assets (or of any of the assets\nacquired from NBC Multimedia), except for dispositions made in the ordinary\ncourse of business, transfers permitted under Section 368(a)(2)(C) of the Code,\nor transfers prescribed by Section 1.368-1(d) that will not affect Xoom 2's\nsatisfaction of the \"continuity of business enterprise\" requirement under\nSection 368 of the Code for purposes of qualifying the Merger as a\n\"reorganization\" under said section, and (iv) reacquire any of the shares of its\nstock issued pursuant to this Agreement, and (B) the historic business of NBC\nMultimedia will be continued or a significant portion of NBC Multimedia's\nhistoric business assets will be used in a business.\n\n (d) (i) NBC and Xenon 2 agree to report to the other any\ncommunication from or with the Internal Revenue Service which relates in any way\nto the characterization of the transactions contemplated by the Agreement.\nNotwithstanding any such communication, Xenon 2 and Xoom covenant and agree to\n(and to cause any Affiliate or successor to their assets or business to)\ncontinue to take each of the positions specified in Section 6.11(b) for all Tax\n --------------- \npurposes (unless there has been a Final Determination contrary to such\nposition).\n\n (ii) Without limiting the generality of Section 6.11(d)(i), (A) NBC\n ------------------ \nwill file with its federal income tax return for the taxable year in which the\nAgreement is consummated (which tax return shall be timely filed) the\ninformation required by Treas. Reg (S) 1.351-3(a), and will deliver a copy of\nthat statement to Xenon 2 within ten days thereafter, and (B) Xenon 2 will file\nwith its federal income tax return for the taxable year in which the Agreement\nis consummated \n\n \n 55\n\n(which tax return shall be timely filed) the information required by Treas. Reg\n(S) 1.351-3(b), and will deliver a copy of that statement to NBC within ten days\nthereafter. Within ninety days after the Closing Date, NBC will deliver to Xenon\n2 all of the cost and other basis information relating to the Contributed Assets\nand assumed Liabilities for federal income tax purposes reasonably required for\nXenon 2 to prepare the statement required by Treas. Reg. (S) 1.351-3(b)(2). Such\ninformation will be delivered in the form normally maintained by NBC and will\ninclude reasonably complete data relating to the tax basis, year of acquisition,\ndepreciable life, and amount and method of depreciation of tangible and\nintangible property. NBC and Xenon 2 also will maintain such records as are\nrequired by Treas. Reg. (S) 1.351-3(c).\n\n (iii) Without limiting the generality of Section 6.11(d)(i), (A)\n ------------------\nXenon 2 and NBC Multimedia will comply with the record-keeping and information\nfiling requirements of Section 1.368-3 of the Treasury Regulations with respect\nto the Merger, and (B) Xenon 2 will file with its federal income tax return for\nthe taxable year in which the Agreement is consummated (which tax return shall\nbe timely filed) the information required by Treasury Regulations Section 1.351-\n3(b) and maintain such records as are required by Treasury Regulations Section\n1.351-3(c) with respect to the Merger.\n\n 6.12 Tax Benefit Payments.\n -------------------- \n\n (a) If a Final Determination is made contrary to any of the positions\ndescribed in 6.11(b)(i), (ii), or (iii), then (in addition to any other remedies\nwhich may be available to NBC but without duplication thereof) Xenon 2 will pay\nto NBC for each Post-Closing Tax Period an amount equal to the excess of (A) the\nliability for federal, state and local Taxes to which Xenon 2, Xoom or any other\nAffiliates or any successor to their assets or businesses (collectively, the\n\"Taxpayer\") would have been subject for all Post-Closing Tax Periods in each\n--------- \nrelevant jurisdiction had the positions described in Section 6.11(b)(i), Section\n ------------------ -------\n6.11(b)(ii) and Section 6.11(b)(iii) been sustained (and had Xenon 2 not been\n----------- -------------------- \nrequired to make any payments pursuant to this Section 6.12), over (B) the\n ------------ \nTaxpayer's actual liability for such Taxes for such periods. Such payment will\nbe due (subject to a ten business-day grace period) when, as, and to the extent\nthe Taxpayer derives an actual benefit (in the form of any refund, reduction in\nTax liability, or otherwise) as the result of such excess. If any payment\nrequired under this Section 6.12(a) for any Post-Closing Tax Period is not made\n --------------- \non or before the due date (without extensions) of the return of such period,\nthen such payment will be made together with interest at the rate per annum\ndetermined from time to time under Section 6621(a)(2) of the Code compounded\ndaily for the period from such due date to the date on which the payment is\nactually made.\n\n (b) In addition, Xenon 2 will pay to NBC, no later than ten business\ndays after each date on which the Taxpayer receives a refund of federal, state\nor local Taxes for a Pre-Closing Tax Period, the excess of such refunds over\nsuch refunds to which the Taxpayer would have been entitled had the positions\ndescribed in Section 6.11(b) been sustained (and had Xenon 2 not been required\n --------------- \nto make any payments under this Section 6.12). If any payment required under\n ------------ \nthis Section 6.12(b) is not made on or before the date such payment is due, then\n --------------- \nsuch payment will be made together with interest at the rate per annum\ndetermined from time to time \n\n \n 56\n\nunder Section 6621(a)(2) of the Code compounded daily for the period from the\ndate such payment was due to the date on which such payment is actually made.\n\n (c) In the event of any adjustment to the Taxpayer's liability for\nfederal, state or local Taxes or entitlement to a refund, as a result of audit,\ncarryover, or otherwise, the amounts previously payable under this Section 6.12\n ------------\nwill be appropriately adjusted and Xenon 2 or NBC, as the case may be, will pay\nto the other the amount, required as a result of such adjustment, together with\ninterest at the rate per annum determined from time to time under Section\n6621(a)(2) of the Code compounded daily for the period from the original payment\ndate affected by the adjustment to the date on which the payment is made. At\nthe time of any payment under this Section 6.12 (or at the request of NBC if\n ------------ \nXenon 2 has determined that no payment is due), Xenon 2 will submit a schedule\nshowing in reasonable detail its calculation of the payment to be made (or the\nbasis for its determination that no payment is due). Any dispute concerning the\ncalculation of payments due under this Section 6.12 will be resolved by the\n ------------ \nIndependent Accountants.\n\n (d) Any payment to NBC under this Section 6.12 will be allocated\n ------------ \nbetween principal and interest for purposes of Section 483, Section 1273, and\nany other relevant provision of the Code by using as a discount rate the rate\nper annum determined from time to time under Section 6621(a)(2) of the Code\ncompounded daily for the period from the date of Closing to the date on which\nthe payment is made. The portion of any such payment created as principal will\nbe treated as additional exchange consideration. Any payment to Xenon 2 under\nthis Section 6.12 (other than interest) will be treated as a reduction of the\n ------------ \nexchange consideration.\n\n (e) NBC will pay (i) any fees or other amounts due to the Independent\nAccountants in respect of the resolution of any dispute pursuant to Section\n -------\n6.12(c), and (ii) all reasonable costs (including the reasonable internal costs\n------- \nof Xenon 2 or any Affiliate or successor thereto) incurred by Xenon 2 (or by\nsuch Affiliate or successor) to comply with the provisions of this Section 6.12.\n ------------ \n\n 6.13 Xoom Cash. As long as the Effective Time occurs on or prior to\n --------- \nSeptember 30, 1999, Xoom covenants and agrees immediately prior to the Effective\nTime that it will have cash, net of outstanding indebtedness of Xoom, in an\namount at least equal to the sum of $200 million less any cash used in\nconnection with acquisitions made in accordance with the terms of Section 5.1;\n ----------- \nprovided that if the Effective Time occurs after that date, the foregoing amount\n-------- \nshall also be less $7.5 million for each month after September 30, 1999 and\nprior to the Effective Time.\n\n 6.14 Transition Services. Promptly after the date of this Agreement, NBC,\n ------------------- \nXoom and Xenon 2 shall use their good faith efforts to negotiate a transition\nservices agreement pursuant to which NBC shall provide certain administrative\nand support services and facilities relating to the NBC Multimedia Businesses to\nXenon 2 for a transition period after the Effective Time on terms mutually\nacceptable to the parties.\n\n \n 57\n\n ARTICLE VII\n\n CONDITIONS TO CLOSING\n ---------------------\n\n 7.1 Conditions Precedent to Obligations of Each Party. The respective\n ------------------------------------------------- \nobligations of each party to this Agreement to consummate this Agreement and the\ntransactions contemplated hereby shall be subject to the satisfaction or waiver\nby the appropriate party of each of the following conditions on or prior to the\nClosing Date:\n\n (a) No Injunctions or Restraints. At the Closing Date, there shall be\n ---------------------------- \n(i) no injunction, restraining order or other decree of any nature of any court\nof competent jurisdiction or other Governmental Authority that is in effect that\nrestrains or prohibits the consummation of any of the transactions contemplated\nhereby, and (ii) no action taken, or any statute, rule, regulation or order\nenacted, entered, enforced or deemed applicable to the transactions contemplated\nhereby, which makes the consummation of this Agreement and the transactions\nherein illegal; provided, however, that the parties hereto shall use their\n -------- ------- \nreasonable commercial efforts to have such injunction, order, decree, claim,\naction, suit, statute, rule or regulation vacated or declared inapplicable as\nexpeditiously as practicable.\n\n (b) Regulatory Authorizations. All orders, consents and approvals of\n ------------------------- \nany Governmental Authorities legally required for the consummation of the\ntransactions contemplated by this Agreement, including the Required Consents,\nshall have been obtained, and all waiting periods applicable under the HSR Act\nand other applicable antitrust, merger control or competition laws or\nregulations shall have expired or been terminated, except those for which\nfailure to obtain such consents and approvals would not, individually and in the\naggregate, have a Material Adverse Effect.\n\n (c) Stockholder Approvals. The Stockholder Approvals shall have been\n --------------------- \nobtained.\n\n (d) Xenon 2 Merger Agreement. The transactions contemplated by the\n ------------------------ \nXenon 2 Merger Agreement to occur at the closing thereunder shall have been\nconsummated as set forth therein.\n\n 7.2 Conditions Precedent to Obligation of NBC. The obligation of NBC to\n ----------------------------------------- \nconsummate this Agreement and the transactions contemplated hereby shall be\nsubject to the satisfaction of each of the following conditions, or by the\nwaiver of such condition by NBC, on or prior to the Closing Date:\n\n (a) Accuracy of Representations and Warranties of Xoom and Xenon 2.\n -------------------------------------------------------------- \nThe representations and warranties of Xoom contained in this Agreement shall be\ntrue and correct in all material respects, in each case on and as of the date of\nthis Agreement and on and as of the Closing Date as though made on and as of\nsuch time, except to the extent such representations and warranties by their\nterms speak as of a specified date, in which case they shall be true and \n\n \n 58\n\ncorrect in all material respects as of such date; and NBC shall have received\nfrom Xoom a certificate to such effect dated as of the Closing Date signed by an\nofficer thereof.\n\n (b) Covenants of Xoom. Xoom shall have complied in all material\n ----------------- \nrespects with all covenants contained in this Agreement to be performed by it on\nor prior to the Closing; and NBC shall have received from Xoom a certificate to\nsuch effect dated as of the Closing Date signed by an officer thereof.\n\n (c) Implementing and Other Agreements. Each of CNET, Xenon 2 and Xoom\n --------------------------------- \nshall have entered into, or shall have caused their respective Subsidiaries to\nhave entered into, each of the Implementing Agreements to which such Person is a\nparty.\n\n (d) Directors and Officers of Xenon 2. The officers and directors of\n --------------------------------- \nXenon 2 shall, as of the Effective Time, consist of the Persons set forth on\n \nSchedule 3.7, who shall have been elected or appointed in accordance with\n------------ \nSection 6.6 hereof.\n----------- \n\n 7.3 Conditions Precedent to Obligations of Xenon 2. The obligation of\n ---------------------------------------------- \nXenon 2 to consummate this Agreement and the transactions contemplated hereby\nshall be subject to the satisfaction of each of the following conditions, or the\nwaiver of such condition by NBC, on or prior to the Closing Date:\n\n (a) Accuracy of Representations and Warranties of NBC. The\n ------------------------------------------------- \nrepresentations and warranties of NBC contained in this Agreement shall be true\nand correct in all material respects, in each case on and as of the date of this\nAgreement and on and as of the Closing Date as though made on and as of such\ntime, except to the extent such representations and warranties by their terms\nspeak as of a specified date, in which case they shall be true and correct in\nall material respects as of such date; and Xenon 2 shall have received from NBC\na certificate to such effect with respect to such party dated as of the Closing\nDate signed by an officer thereof.\n\n (b) Covenants of NBC. NBC and its Subsidiaries shall have complied\n ---------------- \nin all material respects with all covenants contained in this Agreement to be\nperformed on or prior to the Closing; and Xenon 2 shall have received from NBC a\ncertificate to such effect dated as of the Closing Date signed by an officer\nthereof.\n\n (c) Implementing and Other Agreements. NBC shall have entered into,\n --------------------------------- \nor shall have caused its Subsidiaries to have entered into, each of the\nImplementing Agreements to which such Person is a party.\n\n\n ARTICLE IX\n\n INDEMNIFICATION\n ---------------\n\n 8.1 Indemnification by Xenon 2. From and after the Closing, Xenon 2\n -------------------------- \nshall indemnify and hold harmless NBC and its Affiliates and each of its\ndirectors, officers, \n\n \n 59\n\nemployees, agents, heirs, executors, successors and assigns from and against any\nand all Losses and Expenses suffered or incurred by any such indemnified Person\narising from, relating to or otherwise in respect of any breach of the covenant\nof Xoom contained in Section 6.13 of this Agreement.\n ------------ \n\n 8.2 Indemnification by NBC. From and after the Closing Date, NBC shall\n ---------------------- \nindemnify and hold harmless Xenon 2 and its Affiliates and each of the\nforegoing's respective directors, officers, employees and agents, heirs,\nexecutors, successors and assigns of any of the foregoing from and against any\nand all Losses and Expenses suffered or incurred by any such indemnified Person\narising from, relating to or otherwise in respect of any breach of the\nrepresentations and warranties set forth in Section 4.1(c)(iii) and Section\n ------------------- -------\n4.1(v) of this Agreement.\n------ \n\n 8.3 Claims Procedure. (a) If a claim by a third party is made against\n ----------------- \nan indemnified Person hereunder, and if such indemnified Person intends to seek\nindemnity with respect thereto under this Article, such indemnified Person shall\npromptly notify the indemnifying Person in writing of such claims setting forth\nsuch claims in reasonable detail (the \"Claim Notice\"), provided that failure of\n ------------ -------- \nsuch indemnified Person to give prompt notice as provided herein shall not\nrelieve the indemnifying Person of any of its obligations hereunder, except to\nthe extent that the indemnifying Person is materially prejudiced by such\nfailure. The indemnifying Person shall have twenty (20) days after receipt of\nsuch notice (the \"Notice Period\") to undertake, through counsel of its own\n ------------- \nchoosing, subject to the reasonable approval of such indemnified Person, and at\nits own expense, the settlement or defense thereof, and the indemnified Person\nshall cooperate with it in connection therewith; provided, however, that the\n -------- ------- \nindemnified Person may participate in such settlement or defense through counsel\nchosen by such indemnified Person, provided that the fees and expenses of such\n -------- \ncounsel shall be borne by such indemnified Person. If the indemnifying Person\nshall assume the defense of a claim, it shall not settle such claim without the\nprior written consent of the indemnified Person, unless (i) such settlement\nincludes as an unconditional term thereof the giving by the claimant of a\nrelease of the indemnified Person from all Liability with respect to such claim\nor (ii) such settlement does not involve the imposition of equitable remedies or\nthe imposition of any material obligations on such indemnified Person other than\nfinancial obligations for which such indemnified party will be indemnified\nhereunder. If the indemnifying Person shall assume the defense of a claim, the\nfees of any separate counsel retained by the indemnified Person shall be borne\nby such indemnified Person unless there exists a material conflict between them\nas to their respective legal defenses (other than one that is of a monetary\nnature), in which case the indemnified Person shall be entitled to retain one\nlaw firm (plus any necessary local counsel) as its separate counsel, the\nreasonable fees and expenses of which shall be reimbursed by the indemnifying\nPerson. If the indemnifying Person does not notify the indemnified Person\nwithin twenty (20) days after the receipt of the indemnified Person's notice of\na claim of indemnity hereunder that it elects to undertake the defense thereof,\nthe indemnified Person shall have the right to contest, settle or compromise the\nclaim but shall not thereby waive any right to indemnity therefor pursuant to\nthis Agreement.\n\n (b) Other Claims. In the event the indemnified party should have a\n ------------ \nclaim against the indemnifying party hereunder which does not involve a claim or\ndemand being asserted against or sought to be collected from it by a third\nparty, the indemnified party shall \n\n \n 60\n\npromptly send a Claim Notice with respect to such claim to the indemnifying\nparty. If the indemnifying party does not notify the indemnified party within\nthe Notice Period that they dispute such claim, the amount of such claim shall\nbe conclusively deemed a liability of the indemnifying party hereunder.\n\n 8.4 Exclusive Remedy. From and after the Closing, the indemnification\n ---------------- \nobligations under this Article VIII and the obligations of NBC in Section 9.2\n ------------ -----------\nconstitute the sole and exclusive remedy of each party for any breach of, or\ninaccuracy in, any representation or warranty of another party contained in this\nAgreement or in any certificate delivered pursuant hereto or any breach of any\ncovenant in this Agreement in each case to the extent they survive the Closing.\n\n\n ARTICLE X\n\n TERMINATION\n -----------\n\n 9.1 Termination Events. Without prejudice to other remedies which may be\n ------------------ \navailable to the parties by law or this Agreement, this Agreement may be\nterminated and the transactions contemplated herein may be abandoned at any time\nprior to the Effective Time:\n\n (a) by mutual written consent of NBC and Xenon 2;\n\n (b) by either NBC or Xenon 2 by written notice to the other parties if\nthe transactions contemplated by this Agreement have not been consummated by\nDecember 31, 1999, unless extended by written agreement of the parties hereto,\nprovided that the party terminating this Agreement shall not be in material\n-------- \ndefault or breach hereunder and provided, further, that the right to terminate\n --------- ------- \nthis Agreement under this clause (b) shall not be available to any party whose\nfailure to fulfill any obligation under this Agreement has been the cause of, or\nresulted in, the failure to consummate the transactions contemplated by this\nAgreement on or before such date;\n\n (c) by either NBC or Xenon 2 if (i) any Governmental Authority, the\nconsent or approval of which is required for the consummation of the\ntransactions contemplated hereby, shall have determined not to grant its consent\nor approval and all appeals of such determination shall have been taken and have\nbeen unsuccessful or (ii) any court of competent jurisdiction in the United\nStates shall have issued a final and unappealable permanent injunction, order,\njudgment or other decree (other than a temporary restraining order) restraining,\nenjoining or otherwise prohibiting the consummation of the transactions\ncontemplated hereby, provided that the party seeking to terminate this Agreement\n -------- \nunder this clause (c) is not then in material breach of this Agreement and\nprovided, further, that the right to terminate this Agreement under this clause\n-------- ------- \n(c) shall not be available to any party who shall not have used reasonable\ncommercial efforts to avoid the issuance of such order, decree or ruling;\n\n (d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom\nStockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval\nshall not \n\n \n 61\n\nhave been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders\nMeeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not\nhave been obtained;\n\n (e) by NBC if the Board of Directors of Xoom or Xenon 2 or any\ncommittee thereof shall have withdrawn or modified in a manner adverse to NBC\nits approval or recommendation of this Agreement, the Xenon 2 Merger Agreement\nor any of the transactions contemplated hereby or thereby;\n\n (f) by NBC if the Board of Directors of Xoom shall have accepted or\nrecommended a Takeover Proposal or shall have resolved to do so;\n\n (g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder\nApproval, on five business days written notice, if, Xoom receives, without\nviolating its obligations under Section 5.5 hereof, a bona fide Takeover\n ----------- \nProposal from a third party on terms which the Board of Directors of Xoom (i)\ndetermines in good faith and after consultation with a financial advisor of\nnationally recognized reputation to be more favorable to the Xoom stockholders\nthan the transactions contemplated by this Agreement and (ii) concludes in good\nfaith based on the advice of outside legal counsel that termination of this\nAgreement is required to comply with its fiduciary duties under applicable law;\nor\n\n (h) by either NBC or Xenon 2 in the event there has been a material\ndefault or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or\n(y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which\ndefault or breach is not curable, or if curable, is not cured within 30 days\nafter written notice of such breach is given by the non-breaching party.\n\n (i) automatically and without any action by the parties upon the\ntermination of the Xenon 2 Merger Agreement.\n\n 9.2 Effect of Termination. In the event of any termination of the\n --------------------- \nAgreement as provided in Section 9.1 hereto, this Agreement shall forthwith\n ----------- \nbecome wholly void and of no further force and effect (except Section 5.6,\n ----------- \nSection 6.3, Section 9.2 and Article X hereof) and there shall be no liability\n----------- ----------- --------- \non the part of any parties hereto or their respective officers or directors,\nexcept as provided in such sections and article. Notwithstanding the foregoing,\nno party hereto shall be relieved from liability for any willful breach of this\nAgreement; provided, however, that if NBC wilfully fails to close the\n -------- ------- \ntransactions contemplated by this Agreement after all of the conditions to\nclosing set forth in Section 7.1 and Section 7.2 have been satisfied, within 2\n ----------- ----------- \nbusiness days of the termination of this Agreement by Xenon 2, NBC shall pay to\nXenon 2 $475 million, which amount shall constitute the sole and exclusive\nremedy of Xoom and Xenon 2 for such breach by NBC.\n\n \n 62\n\n ARTICLE XI\n\n MISCELLANEOUS AGREEMENTS OF THE PARTIES\n ---------------------------------------\n\n 10.1 Notices. Any notice in connection with this Agreement shall be in\n ------- \nwriting and shall be delivered by air courier or by facsimile at the addresses\nor facsimile numbers given below. If notice is given by: (a) air courier, notice\nshall be deemed given when recorded on the records of the air courier as\nreceived by the receiving party; or (b) facsimile, notice shall be deemed given\nupon transmission, if on a business day and during business hours in the country\nof receipt; otherwise, notice shall be deemed to have been given at 9:00 A.M. on\nthe next Business Day in the country of receipt.\n\n If to NBC, NMC or GE Investments Sub:\n\n National Broadcasting Company, Inc.\n 30 Rockefeller Plaza\n New York, New York 10012\n Attn.: Tom Rogers\n Facsimile: (212) 664-3914\n\n with a copy to:\n\n Simpson Thacher & Bartlett\n 425 Lexington Avenue\n New York, New York 10017\n Attn.: Richard Capelouto\n Facsimile: (212) 455-2502\n\n If to Xoom or Xenon 2:\n\n Xenon 2, Inc.\n 300 Montgomery Street\n Suite 300\n San Francisco, California 94104\n Attn.: Chris Kitze\n Facsimile: (415) 288-2580\n\n with a copy to:\n\n Morrison & Foerster LLP\n 425 Market Street\n San Francisco, California 94105\n Attn.: Bruce Alan Mann\n Facsimile: (415) 268-7522\n\n \n 63\n\n with a copy to:\n\n Morrison & Foerster LLP\n 1290 Avenue of the Americas\n New York, New York 10104\n Attn.: Allen L. Weingarten\n Facsimile: (212) 468-7900\n\nor to such other address as any such party shall designate by written notice to\nthe other parties hereto.\n\n 10.2 Integration; Amendments. This Agreement (including the Schedules \n ----------------------- \nand Exhibits hereto) contains the entire agreement and understanding of the\nparties with regard to the matters contained herein and supercedes any prior\nwritten or oral agreement with respect to the subject matter hereto. This\nAgreement may not be amended or modified except in a writing signed by all\nparties hereto.\n\n 10.3 Waiver. No waiver by any of the parties hereto of any of the\n ------ \nprovisions hereof shall be effective unless explicitly set forth in writing and\nexecuted by the party so waiving. Except as provided in the preceding sentence,\nno action taken pursuant to this Agreement, including, without limitation, any\ninvestigation by or on behalf of any party, shall be deemed to constitute a\nwaiver by the party taking such action of compliance with any representations,\nwarranties, covenants, or agreements contained herein, and in any documents\ndelivered or to be delivered pursuant to this Agreement and in connection with\nthe Closing hereunder. The waiver by any party hereto of a breach of any\nprovision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach.\n\n 10.4 No Assignment; Successors and Assigns. The parties' respective\n ------------------------------------- \nrights and obligations hereunder may not be assigned, transferred, pledged, or\nencumbered, in any manner, direct or indirect, contingent or otherwise, in whole\nor in part, voluntarily or by operation of law, without the prior written\nconsent of the other parties, provided that NBC may assign, in whole or in part,\n -------- \nany of its rights and obligations hereunder and under the Implementing\nAgreements to one or more of its Affiliates without the consent of the other\nparties hereto, but NBC will remain liable for its obligations hereunder and\nunder each of the Implementing Agreements to which it is a party. Subject to\nthe preceding sentence, this Agreement shall be binding on the parties hereto\nand their respective successors and permitted assigns.\n\n 10.5 Expenses. Except as set forth in this Agreement, if the\n -------- \ntransactions contemplated by this Agreement are consummated, all legal and other\ncosts and expenses (including fees and expenses of any financial advisors,\naccountants or other professional advisors) incurred by Xoom, SNAP or NBC in\nconnection with this Agreement and the transactions contemplated hereby shall be\npaid or reimbursed by Xenon 2. If the transactions contemplated by this\nAgreement are not consummated, all legal and other costs and expenses incurred\nin connection with this Agreement and the transactions contemplated hereby shall\nbe paid by the party incurring such costs.\n\n \n 64\n\n 10.6 Severability. If any provision of this Agreement shall be\n ------------ \ndeclared by any court of competent jurisdiction to be illegal, void or\nunenforceable, all other provisions of this Agreement shall not be affected and\nshall remain in full force and effect, and the parties hereto shall negotiate in\ngood faith to replace such illegal, void or unenforceable provision with a\nprovision that corresponds as closely as possible to the intentions of the\nparties as expressed by such illegal, void or unenforceable provision.\n\n 10.7 Section Headings; Table of Contents. The section headings contained\n ----------------------------------- \nin this Agreement and the table of contents to this Agreement are for reference\npurposes only and shall not affect the meaning or interpretation of this\nAgreement.\n\n 10.8 Third Parties. This Agreement does not create any rights, claims\n ------------- \nor benefits inuring to any person that is not a party hereto nor create or\nestablish any third party beneficiary hereto, except as set forth in Section\n -------\n6.6(d).\n------ \n\n 10.9 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall be\n ----------------------------------------- \ngoverned and construed in accordance with the laws of the State of New York\napplicable to contracts executed and performed within such state (except to the\nextent that the DGCL applies to the Merger), and each party hereby submits to\nthe exclusive jurisdiction of any state or U.S. federal court sitting within the\nCounty of New York. Each of the parties hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any litigation arising out of\nthis Agreement or the transactions contemplated hereby in the courts of the\nState of New York sitting in the Borough of Manhattan in the City of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to\nplead or claim in any such court that any such litigation brought in any such\ncourt has been brought in an inconvenient forum.\n\n 10.10 Specific Performance. The parties hereto agree that irreparable\n -------------------- \ndamage would occur in the event any provision of this Agreement was not\nperformed in accordance with the terms hereof and that the parties shall be\nentitled to an injunction or injunctions to prevent breaches of this Agreement\nand to enforce specifically the terms and provisions of this Agreement in\naddition to any other remedy to which they are entitled at law or in equity.\n\n 10.11 Counterparts. This Agreement may be executed in any number of\n ------------ \ncounterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed to be one and the same instrument.\n\n \n 65\n\n IN WITNESS WHEREOF, the parties have caused this Agreement to be duly\nexecuted as of the date first above written.\n\n NATIONAL BROADCASTING COMPANY, INC. \n \n \n By: \/s\/ Thomas A. Rogers\n ______________________________ \n Name: Thomas A. Rogers\n Title: Executive Vice President\n \n GE INVESTMENTS SUBSIDIARY, INC. \n \n \n By: \/s\/ Alan Lewis\n ______________________________ \n Name: Alan Lewis\n Title: \n \n NEON MEDIA CORPORATION \n \n \n By: \/s\/ Thomas A. Rogers\n ______________________________ \n Name: Thomas A. Rogers\n Title: Director\n \n XENON 2, INC. \n \n \n By: \/s\/ Chris Kitze\n ______________________________ \n Name: Chirs Kitze\n Title: \n \n XOOM.COM, INC. \n \n \n By: \/s\/ Chris Kitze\n ______________________________ \n Name: Chris Kitze \n Title: Chairman\n\n \n AGREEMENT AND PLAN OF\n CONTRIBUTION, INVESTMENT AND MERGER\n\n\n among\n\n\n\n NATIONAL BROADCASTING COMPANY, INC.\n\n\n\n GE INVESTMENTS SUBSIDIARY, INC.\n\n\n NEON MEDIA CORPORATION\n\n\n XENON 2, INC.\n\n and\n\n XOOM.COM, INC.\n\n\n\n Dated as of May 9, 1999\n\n \n TABLE OF CONTENTS\n<\/pre>\n
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\nARTICLE I<\/p>\n DEFINITIONS……………………………………………………………………….. 2
\n 1.1 Definitions………………………………………………………………….. 2<\/p>\n
ARTICLE II<\/p>\n
CONTRIBUTIONS AND ISSUANCES…………………………………………………………. 9
\n 2.1 Contributions to NBC Multimedia………………………………………………. 9
\n 2.2 Contributions to NMC; Issuances of NMC Capital Stock……………………………. 9
\n 2.3 Contributions To Xenon 2; Issuances of Xenon 2 Capital Stock…………………….. 10
\n 2.4 Note Issuances……………………………………………………………… 11
\n 2.5 Required Consents…………………………………………………………… 11
\n 2.6 Tax Refunds………………………………………………………………… 12<\/p>\n
ARTICLE III<\/p>\n
THE MERGER………………………………………………………………………… 12
\n 3.1 The Merger…………………………………………………………………. 12
\n 3.2 Closing……………………………………………………………………. 12
\n 3.3 Effective Time……………………………………………………………… 12
\n 3.4 Effects of the Merger……………………………………………………….. 12
\n 3.5 Certificates of Incorporation………………………………………………… 12
\n 3.6 By-Laws……………………………………………………………………. 13
\n 3.7 Officers and Directors of Surviving Corporation and Xenon 2……………………… 13
\n 3.8 Effect on Capital Stock……………………………………………………… 13
\n 3.9 Exchange Procedures…………………………………………………………. 14
\n 3.10 No Further Ownership Rights in NMC Common Stock………………………………… 14
\n 3.11 Further Assurances………………………………………………………….. 14
\n 3.12 Federal Income Tax Consequences………………………………………………. 14<\/p>\n
ARTICLE IV<\/p>\n
REPRESENTATIONS AND WARRANTIES OF THE PARTIES…………………………………………. 14
\n 4.1 Representations and Warranties of NBC…………………………………………. 14
\n 4.2 Representations and Warranties with respect to SNAP…………………………….. 21
\n 4.3 Representations and Warranties of Xoom and Xenon 2……………………………… 29
\n 4.4 Representations and Warranties with respect to GE Investments Sub………………… 39
\n 4.5 Survival of Representations and Warranties…………………………………….. 39
\n 4.6 No Other Representation or and Warranties……………………………………… 40<\/p>\n
ARTICLE V<\/p>\n
CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME………………………………………………….. 40
\n<\/c><\/s><\/caption>\n<\/table>\n
i<\/p>\n
\n
\n 5.1 Conduct of the Business of Xoom Pending the Closing………………………………………….. 40
\n 5.2 Conduct of the Business of SNAP Pending the Closing………………………………………….. 42
\n 5.3 Conduct of the NBC Multimedia Businesses Pending the Closing………………………………….. 44
\n 5.4 Access to Information…………………………………………………………………….. 45
\n 5.5 No Solicitation………………………………………………………………………….. 45
\n 5.6 Non-Solicitation of Employees……………………………………………………………… 47
\n 5.7 Amendments to Schedules…………………………………………………………………… 47<\/p>\nARTICLE VI<\/p>\n
OTHER AGREEMENTS………………………………………………………………………………………. 48
\n 6.1 Registration Statement; Preparation of Proxy Statement……………………………………….. 48
\n 6.2 Stockholder Meeting………………………………………………………………………. 49
\n 6.3 Public Statements………………………………………………………………………… 49
\n 6.4 Reasonable Commercial Efforts……………………………………………………………… 50
\n 6.5 Notification of Certain Matters……………………………………………………………. 50
\n 6.6 Xenon 2 Directors………………………………………………………………………… 51
\n 6.7 Employee Matters…………………………………………………………………………. 51
\n 6.8 Xenon 2 Options………………………………………………………………………….. 52
\n 6.9 SNAP Indebtedness………………………………………………………………………… 53
\n 6.10 Organization of CNBC.com………………………………………………………………….. 54
\n 6.11 Tax Cooperation and Consistent Reporting……………………………………………………. 54
\n 6.12 Tax Benefit Payments……………………………………………………………………… 55
\n 6.13 Xoom Cash……………………………………………………………………………….. 57<\/p>\n
ARTICLE VII<\/p>\n
CONDITIONS TO CLOSING…………………………………………………………………………… 57
\n 7.1 Conditions Precedent to Obligations of Each Party……………………………………………. 57
\n 7.2 Conditions Precedent to Obligation of NBC…………………………………………………… 58
\n 7.3 Conditions Precedent to Obligations of Xenon 2………………………………………………. 58<\/p>\n
ARTICLE VIII<\/p>\n
INDEMNIFICATION………………………………………………………………………………… 59
\n 8.1 Indemnification by Xenon 2………………………………………………………………… 59
\n 8.2 Indemnification by NBC……………………………………………………………………. 59
\n 8.3 Claims Procedure…………………………………………………………………………. 59
\n 8.4 Exclusive Remedy…………………………………………………………………………. 60<\/p>\n
ARTICLE IX<\/p>\n
TERMINATION……………………………………………………………………………………. 60
\n 9.1 Termination Events……………………………………………………………………….. 60
\n 9.2 Effect of Termination…………………………………………………………………….. 62<\/p>\n
ARTICLE X<\/p>\n
MISCELLANEOUS AGREEMENTS OF THE PARTIES…………………………………………………………… 62
\n<\/c><\/s><\/table>\n
ii<\/p>\n
\n <\/p>\n 10.1 Notices………………………………………………………………………………. 62
\n 10.2 Integration; Amendments………………………………………………………………… 63
\n 10.3. Waiver……………………………………………………………………………….. 63
\n 10.4. No Assignment; Successors and Assigns……………………………………………………. 64
\n 10.5. Expenses……………………………………………………………………………… 64
\n 10.6. Severability………………………………………………………………………….. 64
\n 10.7 Section Headings; Table of Contents……………………………………………………… 64
\n 10.8. Third Parties…………………………………………………………………………. 64
\n 10.9 GOVERNING LAW; SUBMISSION TO JURISDICTION………………………………………………… 64
\n 10.10 Specific Performance…………………………………………………………………… 65
\n 10.11 Counterparts………………………………………………………………………….. 65<\/p>\n
<\/c><\/s><\/table>\n
iii<\/p>\n
EXHIBITS<\/p>\n
Exhibit A Advertising Agreement Term Sheet
\nExhibit B Standstill Agreement
\nExhibit C Voting and Right of First Offer Agreement
\nExhibit D Governance and Investor Rights Agreement
\nExhibit E Brand Integration and License Agreement
\nExhibit F Registration Rights Term Sheet
\nExhibit G Summary of Principal Terms of Xenon 2 Convertible
\n Note
\nExhibit H NBC Note- Summary of Principal Terms
\nExhibit 3.5 Restated Certificate of Incorporation of Xenon 2, Inc.
\nExhibit 3.6 Bylaws of Xenon 2, Inc.<\/p>\n
SCHEDULES<\/p>\n
Schedule 1.1(a) Knowledge Definition
\nSchedule 1.1(b) NBC Multimedia Assets
\nSchedule 1.1(c) NBC Multimedia Liabilities
\nSchedule 2.1 Rights and Obligations of CNBC, Inc. Interests
\nSchedule 3.7 Officers and Directors
\nSchedule 4.1(c) Governmental Approvals; Consents
\nSchedule 4.1(e) Financial Information
\nSchedule 4.1(f) Absence of Certain Changes or Events
\nSchedule 4.1(h) Properties, Contracts, Permits and Other Data
\nSchedule 4.1(i) Legal Proceedings
\nSchedule 4.1(j) Labor Controversies
\nSchedule 4.1(k) Intellectual Property and Technology
\nSchedule 4.1(l) Government Licenses, Permits, Etc.
\nSchedule 4.1(n) Environmental Matters
\nSchedule 4.1(o) Employee Benefit Matters
\nSchedule 4.1(q) Entire Business
\nSchedule 4.2(c) Governmental Approvals; Consents
\nSchedule 4.2(e) Equity Interests
\nSchedule 4.2(f) Financial Information; Liabilities
\nSchedule 4.2(g) Absence of Certain Changes or Events
\nSchedule 4.2(h) Title to Properties; Liens
\nSchedule 4.2(i) Properties, Contracts, Permits
\nSchedule 4.2(j) Legal Proceedings
\nSchedule 4.2(k) Labor Controversies
\nSchedule 4.2(l) Intellectual Property and Technology
\nSchedule 4.2(m) Government Licenses, Permits
\nSchedule 4.2(o) Environmental Matters
\nSchedule 4.2(p) Employee Benefit Matters
\nSchedule 4.2(r) Tax matters<\/p>\n
iv<\/p>\n
Schedule 4.2(t) Acceleration of Options
\nSchedule 4.3(c) Governmental Approvals; Consents
\nSchedule 4.3(g) Stock Options
\nSchedule 4.3(h) Obligations with Respect to Capital Stock
\nSchedule 4.3(j) Absence of Certain Changes or Events
\nSchedule 4.3(k) Properties, Contracts, Permits and Other Data
\nSchedule 4.3(l) Legal Proceedings
\nSchedule 4.3(m) Labor Controversies
\nSchedule 4.3(n) Intellectual Property
\nSchedule 4.3(o) Government Licenses, Permits, Etc.
\nSchedule 4.3(q) Employee Benefits Matters
\nSchedule 4.3(q)(iii) Exception to Employee Benefit Plan Compliance
\nSchedule 4.3(q)(vii) Benefit Payments Required
\nSchedule 4.3(s) Tax Matters
\nSchedule 4.3(u) Year 2000 Compliance
\nSchedule 5.1 Conduct of the Business of Xoom Pending the
\n Closing
\nSchedule 5.2 Conduct of the Business of SNAP Pending the
\n Closing
\nSchedule 6.4 Required Consents
\nSchedule 6.7(a) Transferred Employees
\nSchedule 6.9 SNAP Indebtedness
\nSchedule 6.10 Organization of CNBC<\/p>\n
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