{"id":43315,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/asset-purchase-agreement-xoom-inc-and-pagecount-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"asset-purchase-agreement-xoom-inc-and-pagecount-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/asset-purchase-agreement-xoom-inc-and-pagecount-inc.html","title":{"rendered":"Asset Purchase Agreement &#8211; Xoom Inc. and Pagecount Inc."},"content":{"rendered":"<pre>\n \n                           ASSET PURCHASE AGREEMENT\n\n     THIS ASSET PURCHASE AGREEMENT (this \"Agreement\") is made and entered into\n                                          ---------                      \nas of July 24, 1998 by and between XOOM, INC., a Delaware corporation (the\n\"Purchaser\") and PAGECOUNT, INC., a Maryland corporation (the \"Seller\").\n ---------                                                     ------   \n\n                                   RECITALS:\n\n     1.   The Seller owns and operates an online facility for counting and\nmonitoring Internet Web traffic on individual Web pages, offered free of charge\nto users with home pages on the Web (the \"Pagecount Service\");\n                                           -----------------   \n\n     2.   The Seller desires to sell, and the Purchaser desires to buy, on the\nterms and conditions set forth in this Agreement, the Pagecount Service,\ntogether with certain of the Seller's assets as set forth herein; and\n\n     3.   The Seller desires to assign, and the Purchaser is willing to assume,\non the terms and conditions set forth in this Agreement, certain of the\nliabilities of the Seller as set forth herein; and\n\n     NOW, THEREFORE, in consideration of the premises and of the mutual\nagreements hereinafter contained, the parties hereto agree as follows:\n\n                                   ARTICLE 1\n\n                          PURCHASE AND SALE OF ASSETS\n\n     1.1  Transferred Assets.\n          ------------------\n\n     Subject to and upon the terms and conditions of this Agreement, the Seller\nagrees to sell, assign, transfer, convey and deliver to the Purchaser free and\nclear of all liabilities and encumbrances except as hereinafter set forth, and\nthe Purchaser agrees to purchase from the Seller on the Closing Date (as defined\nin Article 3) the hardware, software, scripts, data files and other electronic\ndata, source code, code user base, the domain www.pagecount.com and the other\n                                              -----------------              \ndomain names listed on Schedule 1.1 hereto, and any other personal and\nintellectual property necessary to create, maintain and operate (or actually\nused by Seller to create, maintain and operate) the Pagecount Service (all of\nwhich are sometimes collectively referred to as the \"Transferred Assets\"),\n                                                     ------------------   \nincluding, without limitation, the assets and property of Seller reflected on\nits balance sheet as of June 30, 1998 (the \"Interim Balance Sheet\") (except as\n                                            ---------------------             \nexcluded on Schedule 1.2(d), and all assets and property thereafter acquired by\nSeller necessary to create, maintain and operate (or actually used by Seller to\ncreate, maintain and operate) the Pagecount Service before the Closing Date and\nnot disposed of in the ordinary course of business consistent with prior\npractice, including without limitation, the following:\n\n\n \n     (a) All tangible personal property and assets (except as hereinafter\nexpressly provided otherwise), including, but not limited to, the accounts\nreceivable and other assets set forth on Schedule 1.1(a) hereto;\n                                         ---------------        \n\n     (b) All registered and common law trademarks and service marks, tradenames,\ncopyrights, logos, slogans, and permissions for the use of copyrighted materials\nowned by others owned by the Seller (and all licenses with respect thereto),\nwhich are listed on Schedule 1.1(b) hereto;\n                    ---------------        \n\n     (c) All of Seller's claims and rights against third parties, if any,\nrelating to the Transferred Assets;\n\n     (d) All contracts of Seller relevant to operation of the Pagecount Service,\nwhich are listed on Schedule 1.1(d) hereto;\n                    ---------------        \n\n     (e) All trade secrets, know-how, procedures and marketing know-how to the\nextent documented or implicitly part of or required to operate the Pagecount\nSystem as it exists as of the Closing;\n\n     (f) All accounts receivable, prepayments, deferred expenses, notes\nreceivable, rights to advances and deposits;\n\n     (g)  Seller's goodwill;\n\n     (h) All of the insurance policies set forth in Schedule 1.1(h) hereto to \n                                                 ---------------              \nthe extent such policies relate to liabilities assumed by the Purchaser pursuant\nto this Agreement; and\n\n     (i) All other tangible and intangible assets necessary to create, maintain\nand operate (or actually used by Seller to create, maintain and operate) the\nPagecount Service.\n\n     1.2  Retained Assets.\n          ----------------\n\n     Notwithstanding anything to the contrary herein, the Seller shall retain\nand not sell, assign, transfer, convey or deliver to the Purchaser any of the\nfollowing (hereinafter referred to as the \"Retained Assets\"):\n                                           ---------------   \n\n     (a) The Seller's corporate books and records containing the minutes of\nmeetings of directors and stockholders;\n\n     (b) All federal, state, county and local income, excise, franchise,\nproperty and other tax returns, reports and declarations of the Seller;\n\n     (c) All tax refunds due and owing to the Seller in respect of all periods\nup to the Closing Date;\n\n     (d) All assets listed on Schedule 1.2(d) hereto;\n                              ---------------        \n\n\n \n     1.3  Title.\n          ------\n\n     Title to the Transferred Assets shall pass to the Purchaser at the Closing\nand the Transferred Assets shall be deemed delivered to the Purchaser at their\nrespective locations, but Seller shall retain physical possession of the\nTransferred Assets and operate such assets for The Purchaser's account pursuant\nto a Management Agreement in the form of Exhibit A hereto (the \"Management\n                                         ---------              ----------\nAgreement\"), to be entered into as of the Closing.\n---------                                         \n\n                                   ARTICLE 2\n\n                                PURCHASE PRICE\n\n     2.1  Purchase Price\/Payment Terms.\n          -----------------------------\n\n     The purchase price to be paid by The Purchaser to Seller for the\nTransferred Assets shall consist of (i) $1.4 million in cash as set forth below,\nand (ii) the assumption of certain liabilities as provided in Section 2.2.\n     \n     (a) At the Closing, the Purchaser shall deliver to the Seller's account by\nwire transfer in immediately available funds Two Hundred Thousand Dollars\n($200,000.00).\n\n     (b) The balance of the purchase price of $1.2 million shall be payable by\nPurchaser under a recourse promissory note substantially in the form of Exhibit\n                                                                        -------\nB hereto (the \"Note\"), with interest, in arrears, payable at the annual rate of\n-              ----                                                            \n7% and a default rate of 12%.  Payments on the Note shall be amortized on a 24-\nmonth schedule, but all amounts still outstanding under the Note shall be due\nand payable (except as set forth in Section 2.2) nine months after the Closing\n(the \"Maturity Date\").  The Note shall be subject to prepayment at any time,\n      -------------                                                         \nwithout penalty, at the Purchaser's sole discretion.  The Note shall be secured\nby the Purchaser's entire interest in the Transferred Assets and any additional\nhardware contributed by the Purchaser and located at Pagecount's headquarters\nand at other places where Pagecount currently has operations used in operating\nthe Pagecount Service.  Monthly installments on the Note, each in the amount of\n$53,727, shall be due and payable beginning from the thirtieth day after the\nClosing and continuing on the same day of each month thereafter up to and\nincluding the Maturity Date, on which date all outstanding interest and\nprincipal shall be due and payable; provided, however, that the Note shall\nautomatically accelerate and become payable in full (except as set forth in\nSection 2.2) upon the first to occur of the Purchaser's receipt of the proceeds\nof an initial public offering (an \"IPO\"), the closing of a Corporate\n                                   ---                              \nTransaction, Change of Control, or Financing (as defined in Section 2.1(c)).\n\n     (c)  For purposes hereof:\n\n               (i) \"Change in Control\" shall mean a change in ownership or \n                    -----------------\ncontrol of the Purchaser effected through the direct or indirect acquisition or\ntransfer of securities possessing more than fifty percent (50%) of the total\ncombined voting power of the Purchaser's outstanding securities.\n\n\n \n          (ii)  \"Corporate Transaction\" shall mean any of the following \n                 ---------------------      \ntransactions to which the Purchaser is a party: (A) the sale, transfer or other\ndisposition of all or substantially all of the assets of the Purchaser, (B) a\nmerger with or into another entity where the Purchaser is not the survivor\n(other than a merger solely for the purpose of changing the state of\nincorporation or effecting a recapitalization of the Purchaser); or (C) a\nconsolidation or other reorganization, in which shareholders of the Purchaser\nprior to such event own less than fifty percent (50%) of the outstanding voting\nsecurities of the survivor.\n\n          (iii) \"Financing\" shall mean the Purchaser's issuance(s) of its\n                ---------                                               \nsecurities, (debt or equity) or borrowing(s) the aggregate proceeds of which\nequal or exceed $3,000,000.\n\n          (iv)  \"IPO\" shall mean a best efforts or firm commitment underwritten\n           ---                                                           \ninitial public offering of the securities of Purchaser or Purchaser's\naffiliates, the proceeds of which equal or exceed $3 million.\n\n     2.2  Holdback.\n          ---------\n\n     Upon the first to occur of (i) an IPO, (ii) prepayment in full of the Note\n(subject to this Section 2.2), (iii) closing of a Corporate Transaction or\nChange of Control, or (iv) on the Maturity Date, the final $200,000 of principal\n(after payment of any accrued interest) payable under the Note shall constitute\na holdback amount (the \"Holdback\") which will be paid into an escrow account\n                        --------                                            \nunder the control of a third party institution and governed by an Escrow\nAgreement in substantially the form of Exhibit C hereto (the \"Escrow\n                                       ---------              ------\nAgreement\"), upon which the Note shall be deemed paid in full.  The Holdback\nshall be released to Pagecount, net of indemnified losses, if any, payable to\nthe Purchaser under this Agreement or the Management Agreement in satisfaction\nof a good faith claim by Purchaser, at the rate of $50,000 per month during each\nof the four months after the date on which payment of the balance of the Note is\ndue and payable, less any offsets to which the Purchaser is entitled under this\nAgreement or the Management Agreement.\n\n     2.3  Limited Assumption of Liabilities.\n          ----------------------------------\n\n     At the Closing, the Purchaser shall assume only the following obligations\nand liabilities of the Seller and no others (the \"Assumed Liabilities\"):\n                                                  -------------------   \n\n     (a) The liabilities of the Seller reflected on Schedule 2.3(a) hereto that\n                                                 ---------------                \nare outstanding on the Closing Date;\n\n     (b) The obligations and liabilities of the Seller under the contracts and\nagreements listed on Schedule 1.1(d).\n                     --------------- \n\n     2.4  Liabilities Not Assumed.\n          ------------------------\n\n     (a) Notwithstanding the foregoing, the Purchaser shall not assume any\nobligation or liability resulting from or arising out of any breach of any\nrepresentation, warranty or agreement of the Seller contained in this Agreement.\n\n\n \n     (b) The Purchaser undertakes no liability of the Seller not expressly\nassumed including, without limitation, liability with respect to environmental\nclaims and suits; liability for the payment of the Seller's outstanding loans\nand credit lines except as provided in this Agreement; any liability for making\npayments of any kind (including, as a result of the transactions contemplated\nhereby, for the employment or termination of employment by the Seller of\nemployees, or as a result of union contracts, if any, grievances, or other labor\nclaims, or otherwise) to employees of the Seller; liability for pensions or\nother benefits to employees of the Seller; liability for making payments of any\nkind as a result of the termination of any agency; liability for making payments\nof any kind pursuant to any agreements, arrangements or understandings with\nemployees or other persons out of the proceeds from the sale of the Transferred\nAssets; liability for any Taxes (as defined below); liability for any fees or\nexpenses incurred by the Seller in connection with the transactions contemplated\nby the Agreement, and any obligations, charges or liabilities of the Seller, the\nexistence of which constitute a breach of any representation, warranty or\nagreement of the Seller contained in this Agreement.\n\n     (c) For purposes hereof, \"Taxes\" shall mean all taxes, however,\ndenominated, including any interest, penalties or other additions to tax that\nmay become payable in respect thereof, imposed by any federal, territorial,\nstate, local or foreign government or any agency or political subdivision of any\nsuch government, which taxes shall include, without limiting the generality of\nthe foregoing, all income or profits taxes (including, but not limited to,\nfederal income taxes and state income taxes), payroll and employee withholding\ntaxes, unemployment insurance, social security taxes, sales and use taxes, ad\nvalorem taxes, excise taxes, franchise taxes, gross receipts taxes, business\nlicense taxes, occupation taxes, real and personal property taxes, stamp taxes,\nenvironmental taxes, transfer taxes, workers' compensation, Pension Benefit\nGuaranty Corporation premiums and other governmental charges, and other\nobligations of the same or of a similar nature to any of the foregoing, which\nthe Seller is required to pay, withhold or collect.\n\n     2.5  Taxes.\n          -----\n\n     The Seller shall pay all Taxes and any taxes on the Purchaser resulting\nfrom the transfer of the Transferred Assets or the transactions contemplated\nhereby except any liability being (for so long as being) contested in good\nfaith.\n\n     2.6  Apportioned Obligations.\n          ------------------------\n\n     The Seller shall be responsible for and shall pay any Taxes arising or\nresulting from or in connection with the ownership of Transferred Assets on or\nprior to the Closing Date (as defined below) (including, without limitation,\nTaxes arising or resulting from the sale of the Transferred Assets pursuant to\nthis Agreement).  The Purchaser shall be responsible for and shall pay all\nsales, use and transfer tax relating to the sale and transfer of the Transferred\nAssets and all Taxes arising or resulting from or in connection with the\nownership of the Transferred Assets after the Closing Date.\n\n\n \n     2.7  Tax Clearance Certificates.\n          ---------------------------\n\n     The Seller shall, at its sole cost and expense, deliver to the Purchaser on\nor before the Closing Date (as defined below) clearance certificates issued by\nthe Maryland Department of Assessment and Taxation.\n\n                                   ARTICLE 3\n\n\n                                    CLOSING\n\n     The closing of the purchase and sale of the Transferred Assets hereunder\nshall be held at the offices of Morrison &amp; Foerster LLP, 425 Market Street, San\nFrancisco, California 94105 at 10:00 a.m., local time, on July 28, 1998 (the\n\"Closing Date\") or at such other time and place as shall be mutually agreed upon\n-------------                                                                   \nby the Purchaser and the Seller.  Provided such party is not in default of any\nof its obligations pursuant to this Agreement, either party upon notice to the\nother party given in the manner provided for herein may extend the closing for a\nperiod or for periods up to and including August 20, 1998.  The time and place\nof closing is herein referred to as the \"Closing\" and the date of the Closing is\n                                         -------                                \nherein referred to as the \"Closing Date.\"\n                           ------------- \n\n                                   ARTICLE 4\n\n\n                 REPRESENTATIONS AND WARRANTIES OF THE SELLER\n\n     The Seller hereby makes the following representations and warranties to the\nPurchaser, as of the date hereof and as of the Closing, subject only to the\ndisclosure items on the Seller's disclosure schedule attached hereto and\nincorporated hereby (\"Seller's Disclosure Schedule\"), the section numbers of\n                      ----------------------------                          \nwhich correspond to the section numbers below:\n\n     4.1  Organization; Books and Records.\n          --------------------------------\n\n     The Seller is a corporation duly organized, validly existing and in good\nstanding under the laws of the State of Maryland, with full corporate power and\nauthority to consummate the transactions contemplated by this Agreement.  Copies\nof the Articles of Incorporation and Bylaws, corporate minute books, stock\ncertificate books and stock transfer books of the Seller have heretofore been\ndelivered to the Purchaser and are, in all material respects true, correct and\ncomplete as of the date hereof.\n\n     4.2  Intentionally Omitted.\n          ----------------------\n\n     4.3  Non-Contravention.\n          ------------------\n\n     To Seller's knowledge, except as set forth in Seller's Disclosure Schedule,\nthe execution, delivery and performance of this Agreement by Sellers and the\nconsummation of the transactions contemplated do not and will not, with or\nwithout the giving of notice or the lapse of time, or both, violate, conflict\nwith, result in the breach of or accelerate the performance required by any of\nthe terms, conditions or provisions of the charter documents or by-laws or other\ngoverning \n\n\n \ndocuments of the Seller or any covenant, agreement or understanding to which the\nSeller is a party or any order, ruling, decree, judgment, arbitration award,\nlaw, rule, regulation or stipulation to which the Seller is subject or\nconstitute a default thereunder or result in the creation of any lien, charge or\nencumbrance upon any of the properties or assets of the Seller.\n\n     4.4  Regulatory Approvals.\n          ---------------------\n\n     Except as set forth in Seller's Disclosure Schedule, to the Seller's\nknowledge, the Seller is not required to file, seek or obtain any governmental\nnotice, filing, authorization, approval, order or consent, or any bond in\nsatisfaction of any governmental regulation, in connection with the execution,\ndelivery and performance of this Agreement by Sellers or in order to prevent\ntermination of any material right, privilege, license or agreement of the\nSeller.\n\n     4.5  Capitalization of the Seller.\n          -----------------------------\n\n     The Seller's authorized capital stock consists of 500 shares of Series A\nCommon Stock, no par value, of which 100 shares are issued and outstanding (the\n\"Series A Common Stock\") and 4,500 shares of Series B Common Stock, no par\n ---------------------                                                    \nvalue, of which 15 shares are issued and outstanding (the \"Series B Common\n                                                           ---------------\nStock\").  The Series A Common Stock and the Series B Common Stock are referred\nto as the \"Capital Stock.\"  All the issued and outstanding shares of Capital\n           --------------                                                   \nStock are duly authorized, validly issued, fully paid and nonassessable, and the\nissued and outstanding shares of Capital Stock are held of record by the\nrespective shareholders and in the amounts as set forth in Schedule 4.5 hereto.\nExcept as set forth in Seller's Disclosure Schedule, there are no outstanding\noptions, warrants or other rights to purchase, obtain or acquire, or any\noutstanding securities or obligations convertible into or exchangeable for, or\nany voting agreements with respect to, any shares of capital stock of the Seller\nor any other securities of the Seller and the Seller is not obligated, now or in\nthe future, contingently or otherwise, to issue, purchase or redeem capital\nstock of the Seller or any other securities of the Seller to or from any person.\n\n     4.6  Subsidiaries and Equity Interests; Transactions with Affiliates.\n          ----------------------------------------------------------------\n\n     (a) Except as set forth in Seller's Disclosure Schedule, the Seller owns no\ncapital stock of or other equity interest in, has no obligation to form or\nparticipate in, any corporation, partnership or other person, and is not a\nmember of or participant in any partnership, joint venture or similar person.\n\n     4.7  Financial Statements.\n          ---------------------\n\n     The Seller has heretofore furnished to the Purchaser unaudited financial\nstatements for the Seller consisting of (a) balance sheets at June 30, 1998 and\nfor year ended December 31, 1997 and (b) statements of income, retained earnings\nand cash flows for the period ended June 30, 1998 and for fiscal year ended\nDecember 31, 1997 (the foregoing financial statements, reports and notes thereto\nare hereinafter collectively referred to as the \"Financial Statements\").  The\n                                                 --------------------        \nFinancial Statements present fairly the financial position of the Seller at the\ndates thereof and the results of operations and cash flows of the Seller for the\nperiod then ended.  Except as and to the extent reflected or reserved against in\nthe unaudited Interim Balance Sheet or otherwise set forth on Seller's\nDisclosure Schedule attached hereto, the Seller had no material\n\n\n \nliability or obligation (whether absolute or contingent, or accrued or\nunaccrued) required to be disclosed in the Financial Statements, or in the notes\nthereto.\n\n     4.8  Absence of Certain Changes or Events.\n          -------------------------------------\n\n     Except as set forth in Seller's Disclosure Schedule, since the date of the\nInterim Balance Sheet, June 30, 1998, there has not been, with respect to the\nSeller or its businesses or properties:\n\n     (a) any material adverse change in the business or financial condition of\nthe Seller (\"Material Adverse Change\");\n\n     (b) any material obligations or liabilities incurred, except trade and\nother obligations or liabilities in usual amounts and on terms consistent with\npast practices incurred by the Seller in the ordinary course of business;\n\n     (c) any indebtedness for borrowed money incurred by the Seller, except\nindebtedness under existing facilities incurred in the ordinary course of\nbusiness;\n\n     (d) any destruction, damage by fire, accident or other casualty or act of\nGod of or to any of the material properties or assets of the Seller, whether or\nnot covered by insurance; or\n\n     (e) any action that, if taken after the date hereof, would constitute a\nbreach of any of the covenants set forth in Article 6.\n\n     4.9  Assets Other than Real Property Interests.\n          ------------------------------------------\n\n     (a) The Seller has good and valid title to the Transferred Assets free and\nclear of all mortgages, liens, security interests, pledges, encumbrances,\ncharges, agreements, claims, restrictions and defects of title of any kind\nexcept (i) as are set forth in Seller's Disclosure Schedule, (ii) mechanics,\ncarriers', workmen's, repairmen's or other like liens arising or incurred in the\nordinary course of business and liens for Taxes which are not due and payable or\nbeing contested in good faith by appropriate proceedings, (iii) other\nimperfections of title or encumbrances, if any, which mortgages, liens, security\ninterests and encumbrances do not, individually or in the aggregate, materially\nimpair the continued use and operation of the assets to which they relate in the\nbusiness of the Seller as presently conducted.\n\n     (b) All the tangible personal property of the Seller has been maintained in\nall material respects in accordance with the past practice of the Seller and\ngenerally accepted industry practice.  Each item of tangible personal property\nof the Seller is in all material respects in good operating condition and\nrepair, ordinary wear and tear excepted.  All leased personal property of the\nSeller is in all material respects in the condition required of such property by\nthe terms of the lease applicable thereto during the term of the lease and upon\nthe expiration thereof.\n\n          4.10 Real Property Owned and Leased.\n          -------------------------------\n\n     Seller's Disclosure Schedule contains a complete and accurate list and full\ndescription of all real property owned or leased by the Seller (the \"Real\n                                                                     ----\nProperty\").  The Seller has good and valid title to the leasehold estates in all\n--------                                                                        \nreal property and interests in real property leased by it, in\n\n\n \neach case, free and clear of all mortgages, liens, security interests, pledges,\nleases, subleases, encumbrances, charges, assignments, easements, claims or\nother restrictions and defects of title.\n\n     4.11 Trademarks, etc.\n          ----------------\n\n     (a) Schedule 1.1(b) sets forth a complete and accurate listing of all\nmaterial United States and foreign trademarks, trade names, service marks and\ncopyrights necessary to create, maintain and operate (or actually used by Seller\nto create, maintain and operate) the Pagecount System (collectively, the \n\"Intellectual Property\") owned, licensed, used or held for use in the conduct \n ---------------------          \nof the businesses of the Seller, whether registered or unregistered, and any\napplications or registrations therefor. Except as set forth in Seller's\nDisclosure Schedule, the Seller solely owns and has the exclusive right to use,\nfree and clear of any payments or encumbrances which in the aggregate are\nmaterial to the conduct of the business of the Seller, all such Intellectual\nProperty. Except as set forth in Seller's Disclosure Schedule, there is no\nmaterial claim or demand of any person pertaining to, or any proceedings which\nare pending or, to the knowledge of the Seller, threatened, which challenge the\nexclusive rights of the Seller in respect of any Intellectual Property whether\nregistered or unregistered. Except as set forth in Seller's Disclosure Schedule,\nno material Intellectual Property to the knowledge of the Seller is subject to\nany agreement restricting the use thereof or any outstanding order, ruling,\ndecree, judgment or stipulation by or with any court, arbitrator or\nadministrative agency, and, to the knowledge of the Seller, none of the\nIntellectual Property infringes the intellectual property rights of others or,\nto the actual knowledge of the Seller, is being infringed by others or is used\nby others (whether or not such use constitutes infringement) except as would not\nhave a Material Adverse Effect on Seller's business or assets. There are no\nmaterial agreements or material licenses between the Seller and any other person\nor entity which may have been terminated or expired prior to the date hereof and\nunder which the Seller has granted rights or licenses in the Intellectual\nProperty to such other persons or entities or granted an option to acquire such\nrights or licenses, which rights or licenses or the option to acquire the same\nsurvived such termination or expiration. Except as set forth in Seller's\nDisclosure Schedule, to the knowledge of Seller, no person or entity has any\nlicenses under any of the Intellectual Property.\n\n     (b) To the knowledge of Seller, the Seller owns and has the unlimited right\nto use, execute, reproduce, display, perform, modify, enhance, distribute,\nprepare derivative works of or sublicense any of the Business Know-how (as\ndefined below) po ssessed by Seller or its affiliates relating to goods and\nservices presently provided by or presently proposed to be provided by the\nSeller. The Seller has not granted any licenses or otherwise disclosed nor has\nit agreed to disclose any of its Business Know-how except as set forth in\nSeller's Disclosure Schedule. As used in this section \"Business Know-how\" shall\n                                                       -----------------\nmean all trade secrets and confidential business and technical information,\nincluding ideas, skills, methods, experience, research and development, know-\nhow, artwork, compositions, technical data, designs, drawings, engineering\nnotebooks, software, source code and specifications necessary to create,\nmaintain and operate (or actually used by Seller to create, maintain and\noperate) the Pagecount Service.\n\n     4.12 Insurance.\n          ----------\n\n     Schedule 1.1(h) sets forth a complete and accurate list of all casualty,\ndirectors and officers liability, general liability (including product\nliability) and all other types of insurance\n\n\n \nmaintained by the Seller, together with the carriers and liability limits for\neach such policy. Each policy is duly in force, and no notice has been received\nby the Seller from any insurance carrier purporting to cancel or reduce coverage\nunder any such policy. The Seller is current in all premiums or other payments\ndue thereunder. Seller's Disclosure Schedule identifies which insurance policies\nare \"occurrence\" or \"claims made.\"\n     ----------     ------------- \n\n     4.13 Commitments.\n          ------------\n\n     (a) Except as set forth in Seller's Disclosure Schedule and except as would\nnot have a Material Adverse Effect on Seller's assets or operations, with\nrespect to commitments that relate to the Pagecount System, Seller is not a\nparty to and bound by any:\n\n          (i)    employment agreement or employment contract;\n\n          (ii)   employee collective bargaining agreement or other contract with\nany labor union;\n\n          (iii)  covenant of the Seller not to compete or other covenant of the\nSeller restricting the development, marketing or distribution of the products\nand services of the Seller;\n\n          (iv)   material agreement, contract or other arrangement with (A)\nSeller or any affiliate of Seller or (B) any current or former officer,\ndirector, employee or independent contractor of the Seller (other than\nemployment agreements covered by clause (i) above);\n\n          (v)    lease, sublease or similar agreement with any person under\nwhich the Seller is a lessor or sublessor of, or makes available for use to any\nperson (other than the Seller), (A) any Real Property or (B) any portion of any\npremises otherwise occupied by the Seller;\n\n          (vi)   lease or similar agreement with any other person under which\n(A) the Seller is lessee of, or holds or uses, any machinery, equipment, vehicle\nor other tangible personal property owned by any person or (B) the Seller is a\nlessor or sublessor of, or makes available for use by any person, any tangible\npersonal property owned or leased by the Seller, in any such case which has an\naggregate future liability or receivable, as the case may be, in excess of\n$10,000;\n\n          (vii)  service, consulting, management or other similar type of\nagreement or contract, in either such case which has an aggregate future\nliability in excess of $5,000;\n\n          (viii) continuing agreement or contract for the distribution of any\nproducts or services manufactured by the Seller;\n\n          (ix)   agreement, contract or arrangement for the placement of\nadvertising or other promotional activities which has an aggregate future\nliability in excess of $10,000 and which cannot be terminated upon 30 days'\nnotice;\n\n          (x)    except as set forth in Seller's Disclosure Schedule, any\nmaterial license, option or other agreement relating in whole or in part to the\nIntellectual Property described in Section 4.11 and the corresponding section of\nSeller's Disclosure Schedule (including any license or other agreement under\nwhich the Seller is licensee or licensor of any such Intellectual\n\n\n \nProperty) or to trade secrets, confidential information or proprietary rights\nand processes of the Seller or any other person;\n\n          (xi)   agreement, contract or other instrument under which the Seller\nhas borrowed any money from, or issued any note, bond, debenture or other\nevidence of indebtedness to, any person or any other note, bond, debenture or\nother evidence of indebtedness issued to any person;\n\n          (xii)  agreement, contract or other instrument under which the Seller\nhas, directly or indirectly, made any advance, loan, extension of credit or\ncapital contribution to, or other investment in, any person;\n\n          (xiii) mortgage, pledge, security agreement, deed of trust or other\ninstrument granting a lien or other encumbrance upon any Real Property, which\nlien or other encumbrance is not set forth in the section of Seller's Disclosure\nSchedule corresponding to Section 4.10;\n\n          (xiv)  agreement, contract or instrument providing for indemnification\nof any person with respect to liabilities relating to any current or former\nbusiness of the Seller, or any predecessor person; or\n\n          (xv)   other agreement, contract, lease, license, commitment or\ninstrument to which the Seller is a party or by or to which it or any of its\nassets or business is bound or subject which has an aggregate future liability\nto any person in excess of $5,000.\n\n     (b) To the Seller's knowledge, except as set forth in Seller's Disclosure\nSchedule, all agreements, contracts, leases, licenses, commitments or\ninstruments of the Seller listed in the Schedules hereto (collectively, the\n\"Contracts\") are valid and binding, in full force and effect and are enforceable\n----------                                                                      \nby the Seller in accordance with their respective terms, except as would not,\neither individually or in the aggregate, result in a Material Adverse Change.\nExcept as set forth in Seller's Disclosure Schedule, the Seller has performed\nall material obligations required to be performed by it to date under the\nContracts and it is not (with or without the lapse of time or the giving of\nnotice, or both) in breach or default in any material respect thereunder.  The\nSeller has provided to the Purchaser a true and correct copy of each of the\nContracts.\n\n     4.14 Legal Proceedings.\n          ------------------\n\n     Except as set forth in Seller's Disclosure Schedule, the Seller is not\nengaged in or a party to, or, to the knowledge of the Seller, threatened with,\nany suit, investigation, legal action or other proceeding before any court,\nadministrative agency, arbitration panel or other similar authority which (a)\ninvolves (individually, or in the aggregate for cases arising out of the same or\nsubstantially similar facts or circumstances) the possibility of liability of\nthe Seller (whether or not covered by insurance), (b) seeks injunctive relief or\n(c) relates to the transactions contemplated by this Agreement, and the Seller\nknows of no basis for any such suit, investigation, legal action or proceeding.\nThere are no outstanding orders, rulings, decrees, judgments or stipulations by\nor with any court, administrative agency, arbitration panel or other similar\nauthority which are applicable to the properties, assets, operations or business\nof the Seller or which challenge or otherwise relate to the transactions\ncontemplated by this Agreement.\n\n\n \nExcept as set forth in Seller's Disclosure Schedule, there is no lawsuit or\nclaim by the Seller pending, or which the Seller intends to initiate, against\nany other person.\n\n     4.15 Taxes.\n          ------\n\n     Except as set forth in Seller's Disclosure Schedule, all Returns (as\ndefined below), required to be filed by or with respect to the Seller and any\npredecessor corporations in respect of Taxes have been filed with the\nappropriate tax authorities and each such Return is materially true, accurate\nand complete.  The Seller has delivered to the Purchaser correct and complete\ncopies of all material Returns of the Seller that have been filed by Seller.\nExcept as and to the extent reflected or reserved against in the Balance Sheet\nor as described in the notes thereto, as of the date hereof, the Seller had no\nliability for Taxes.  All Taxes for periods after the date of the Balance Sheet\nthat should be reserved on the books of the Seller and the Seller's past\npractice have been so reserved, and all estimated tax payments required to be\nmade have been made.  The Seller has withheld and paid over all Taxes required\nto have been withheld and paid over, and complied with all information reporting\nand backup withholding requirements, including maintenance of required records\nwith respect thereto, in connection with amounts paid or owing to any employee,\ncreditor, independent contractor, or other third party.  Except as set forth in\nSeller's Disclosure Schedule, there have been no audits or examinations by any\ntaxing authority relating to Taxes of the Seller during the past six years, no\ntaxing authority has given notice that it will commence any such audit or\nexamination and no taxing authority is asserting (either orally or in writing,\nformally or informally) or, to the knowledge of the Seller, threatening to\nassert any deficiency or claim relating to Taxes of the Seller, and no liens for\nTaxes have been filed and are currently outstanding with respect to any of the\nassets or properties of the Seller.  There is no agreement or waiver currently\nin effect extending the period for assessment or collection of any Taxes.  The\nSeller is not, nor has it ever been, a party to a tax sharing, tax indemnity or\ntax allocation agreement, and the Seller has not assumed the tax liability of\nany other person under contract.  The Seller is not, nor has it ever been, a\nmember of an affiliated group filing a consolidated federal income tax Return.\nAs used herein, \"Return\" or \"Returns\" shall mean all returns, declarations of\n                 ------      -------                                         \nestimated tax payments, reports, estimates, information returns and statements,\nincluding any related or supporting information with respect to any of the\nforegoing, filed or to be filed with the United States or any state,\ngovernmental authority or subdivision or agency thereof in connection with the\ndetermination, assessment, collection or administration of any Taxes.\n\n     4.16 Compliance with Laws.\n          ---------------------\n\n     Except as set forth in Seller's Disclosure Schedule to the knowledge of the\nSeller, (a) the Seller has complied, and is now in compliance, with all federal,\nstate, local and foreign laws, ordinances and regulations (including, without\nlimitation, those relating to employment and employment practices, and\noccupational safety and health) applicable to the Seller, except where\nnoncompliance would not have a material adverse effect; and .(b) no claims or\ncomplaints from any governmental authorities or other parties have been asserted\nor received by the Seller which are still pending or outstanding and, to the\nknowledge of the Seller, none is threatened, that the Seller is in material\nviolation of any applicable building, zoning, occupational safety and health, or\nsimilar law, or of any applicable fair employment, equal opportunity or similar\nlaw, ordinance or regulation.  To the knowledge of the Seller, Seller's\nDisclosure Schedule sets forth all \n\n\n \ngovernmental permits, licenses and authorizations necessary or desirable for the\noperation or occupancy of the properties and the conduct of the business of the\nSeller as presently conducted. All such licenses, permits and authorizations\nwhich are held in the name of any employee, officer, director, stockholder,\nagent or otherwise on behalf of the Seller shall be deemed included under this\nwarranty.\n\n     4.17 Environment.\n          ------------\n\n     Except as set forth in Seller's Disclosure Schedule, (a) no Hazardous\nMaterial (as defined below) is located on, at, in, under or about any real\nproperty, including any buildings, structures, fixtures, improvements,\ninterests, privileges, easements and appurtenances related thereto, owned,\nleased or operated by the Seller (\"Premises\") in a manner which violates any\n                                   --------                                 \nEnvironmental Requirement (as defined below), or for which clean-up or\ncorrective action of any kind could be required or is otherwise authorized under\nany Environmental Requirement; (b) no risk to human health or the environment\nexists as a result of any Hazardous Material previously or currently located on,\nat, in, under or about the Premises; (c) no releasing, emitting, discharging,\nleaching, dumping, disposing of any Hazardous Material from the Premises onto or\ninto any other property or from any other property onto or into the Premises has\noccurred or is occurring in violation of any Environmental Requirement, or for\nwhich clean-up or corrective action of any kind could be required or is\notherwise authorized under any Environmental Requirement, or which could pose a\nrisk to human health or the environment; (d) no notice of violation, lien,\ncomplaint, suit, order or other notice with respect to the environmental\ncondition of the Premises or regarding the disposal or release of Hazardous\nMaterials from the Premises onto any other property is outstanding, threatened\nor otherwise anticipated, nor has any such notice been issued which has not been\nfully satisfied and complied with in a timely manner so as to bring the Premises\ninto full compliance with every Environmental Requirement; (e) the Seller does\nnot currently own or operate, nor in the past has owned or operated, any\nproperty that is on the \"National Priorities List\" or the CERCLA list of the\n                         ------------------------                           \nU.S. Environmental Protection Agency (\"EPA\"), or any similar state list, or is\n                                       ---                                    \nthe subject of any federal, state or local investigation evaluating whether any\nremedial action is needed to respond to a release of any Hazardous Material into\nthe environment; (f) the Seller or any of its predecessors has filed or\notherwise provided any notice under any federal, state or local law indicating\npast or present treatment, storage or disposal of a Hazardous Material into the\nenvironment; (g) the Seller has no contingent liability in connection with the\ngeneration, treatment, storage, disposal or any release of any Hazardous\nMaterial into the environment; (h) none of the operations of the Seller involves\nor has ever involved the treatment, storage or disposal of a Hazardous Material;\n(i) neither the Seller, nor any lessee, prior owner or other person, has\ndisposed of or arranged for the disposal of any Hazardous Material on any\npremises which are currently or have in the past been owned, leased or operated\nby the Seller; (j) the Seller has not disposed of, or arranged for the disposal\nof, any Hazardous Material on any premises not owned by the Seller that is on\nEPA's National Priorities List or the CERCLA list or any similar state list, or\nwhich is or reasonably could be the subject of any clean-up action by a federal\nor state agency, or by a third party who could seek reimbursement of clean-up\nexpenses from the Seller under federal or state law; (k) no underground storage\ntanks or surface impoundments are on any Premises; (l) no information exists\nindicating that any person (including past or present employees) may have his\nhealth impaired as a result of exposure to any Hazardous Materials located on,\nat, in, under or about the Premises; and (m) the Seller and all third parties,\nwith respect to any conduct of such parties that \n\n\n \nmight result in liability to the Seller, are currently and have at all times in\nthe past been in full compliance with all applicable Environmental Requirements.\nFor the purpose hereof, the following terms shall have the following meanings:\n\n             i)                     The term \"Hazardous Materials\" means any\n                                              -------------------           \n   material, substance or constituent, including any PCBs, pollutants, solid\n   wastes, explosive or regulated radioactive materials or substances, hazardous\n   or toxic materials, substances, wastes or chemicals, petroleum (including\n   crude oil or any fraction thereof) or petroleum distillates, asbestos or\n   asbestos containing materials, materials listed in 49 C.F.R. Section 172.101\n   and materials defined as hazardous substances pursuant to Section 101(14) of\n   the Comprehensive Environmental Response, Compensation and Liability Act of\n   1980 (42 U.S.C. (S)(S) 9601 et seq.), as amended (\"CERCLA\"), that, whether by\n                                                      ------                    \n   its nature or its use, is subject to regulation under, or forms the basis for\n   liability under, any Environmental Requirement.\n\n             ii)                    The term \"Environmental Requirement\" means\n                                              -------------------------       \n   current or future obligations, duties or requirements arising out of or\n   related to any laws, ordinances, statutes, codes, rules, regulations, orders,\n   judicial decisions, judgments, decrees, governmental restrictions,\n   directives, policies, guidelines, permits or licenses addressing\n   environmental, health or safety issues or requirements of or by any federal,\n   state or local government agency, including but not limited to, CERCLA, the\n   Hazardous Materials Transportation Act (49 U.S.C. (S)(S) 1801 et seq.), the\n   Resource Conservation and Recovery Act (42 U.S.C. (S)(S) 6901 et seq.), the\n   Toxic Substances Control Act (15 U.S.C. S(S) 2601 et she.) the Clean Air Act\n   (42 U.S.C. (S)(S) 7401 et seq.), the Federal Water Pollution Control Act (32\n   U.S.C. (S)(S) 1251 et seq.) and the Safe Drinking Water Act (32 U.S.C. (S)(S)\n   300f et seq.), in each care as may be amended from time to time, any\n   regulation pursuant to any of the above laws, and including, but not limited\n   to, any obligations, duties or requirements arising out of or related to\n   Hazardous Materials under common law or foreign law.\n\n     4.18 Employee Benefit Plans: Termination and Severance Agreements\n          ------------------------------------------------------------\n\n     The Seller has no pension, retirement, savings, profit sharing, deferred\ncompensation, medical, dental or health plan, or life insurance plan, bonus,\nincentive and special compensation or other plan or other employee benefit plan\nor program.\n\n     4.19 Employee and Labor Matters.\n          ---------------------------\n\n     (a) The Seller is not a party to any collective bargaining agreement or\nother contract with or commitment to any labor union or association representing\nany employee of the Seller, nor does any labor union or collective bargaining\nagent represent any employees of the Seller. Except as set forth in Seller's\nDisclosure Schedule, there are no pending, or, to the knowledge of the Seller,\nthreatened, charges against the Seller, or any current or former employee,\nofficer or director of the Seller before the Equal Employment Opportunity\nCommission or any state or local agency responsible for the prevention of\nunlawful employment practices.\n\n\n \n     (b) All employees working in the United States hired by the Seller on or\nafter November 7, 1986 are authorized for employment by the Seller in the United\nStates in accordance with the Immigration and Naturalization Act, as amended,\nand regulations promulgated under that statute. No allegations of immigration-\nrelated unfair employment practices have been made with the Equal Employment\nOpportunity Commission or the Special Counsel for Immigration-Related Unfair\nEmployment Practices. The Seller has completed and retained in accordance with\nthe Immigration and Naturalization Service regulations a Form I-9 for all\nemployees working in the United States hired on or after November 7, 1986,\nexcept those employees whose employment terminated on or before June 1, 1987.\nNone of the employees currently employed by the Seller is authorized for\nemployment in the United States pursuant to a nonimmigrant visa which authorizes\nthe employee to be employed by the Seller.\n\n     (c) Seller's Disclosure Schedule sets forth a complete list of all the\nSeller's officers, directors and employees together with the monthly salary of\neach.\n\n     4.20 Capital Expenditures.\n          ---------------------\n\n     Except as disclosed on Seller's Disclosure Schedule and approved by\nPurchaser, the aggregate contractual commitments of the Seller for new capital\nexpenditures since the date of the Balance Sheet shall not exceed $2,500 on the\nClosing Date.\n\n     4.21 Customer Accounts Receivable; Inventories.\n          ------------------------------------------\n\n     To the knowledge of the Seller, all accounts receivable of the Seller,\nwhether reflected on the Balance Sheet or subsequently created, have arisen from\nbona fide transactions in the ordinary course of business and are good and\ncollectible upon the terms agreed upon at delivery of the services and at the\naggregate recorded amounts thereof, net of any applicable reserves or allowances\nfor doubtful accounts which are reflected on the Balance Sheet or accrued after\nthe date of the Balance Sheet in the ordinary course of business consistent with\npast practice.  During the two year period prior to the date hereof, the Seller\nhas not sold, pledged or otherwise disposed of any of its accounts receivable in\nconnection with any receivable-type financing or factoring-type financing or\nsimilar transaction.\n\n     4.22 No Material Misstatement or Omission.\n          -------------------------------------\n\n     No representation or warranty of the Seller in this Asset Purchase\nAgreement nor any information contained in any schedule, certificate or other\nwriting delivered pursuant to this Agreement or at the Closing, contains or will\ncontain any untrue statement of a material fact or omits or will omit to state a\nmaterial fact necessary to make the statements contained herein or therein not\nmisleading.\n\n     4.23 No Undisclosed Material Liabilities.\n          ------------------------------------\n\n     To the knowledge of Seller, there are no liabilities of the Seller of any\nkind whatsoever, whether accrued, contingent, absolute, determined, determinable\nor otherwise, and there is no existing condition, situation or set of\ncircumstances, other than:\n\n     (a) liabilities provided for in the Balance Sheet or disclosed in the notes\nthereto;\n\n\n \n     (b) liabilities disclosed on Seller's Disclosure Schedule; and\n\n     (c) other undisclosed liabilities which, individually or in the aggregate,\nwould not result in a Material Adverse Change.\n\n     4.24 Authorization.\n          --------------\n\n     The execution and delivery by the Seller of this Agreement and the Related\nAgreements (as defined in Section 7.8, and the consummation of the transactions\ncontemplated hereby and thereby, will, on the Closing Date, have been, duly and\nvalidly authorized by all necessary corporate action on the Seller's part, and\nthis Agreement and the Related Agreements and all other such instruments and\nagreements delivered or to be delivered by the Seller in connection herewith\nwill be, on the closing Date, the valid and binding obligations of the Seller,\nenforceable against it in accordance with their respective terms.\n\n     4.25 Title to Assets.\n          ----------------\n\n     Except as set forth in Seller's Disclosure Schedule, Seller has good and\nmarketable title to all the Transferred Assets.  All these assets are free and\nclear of restrictions on or conditions to transfer or assignment, and free and\nclear of mortgages, liens, pledges, charges, encumbrances, equities, claims,\ncovenants, conditions, or restrictions, except for (i) the disclosures contained\nin Seller's Disclosure Schedule; and (ii) possible minor matters that, in the\naggregate, are not substantial in amount and do not materially detract from or\ninterfere with the present or intended use of any of these assets or materially\nimpair business operations.  The Seller is not in default or in arrears in any\nmaterial respect under any lease.\n\n     4.26 Condition of Assets.\n          --------------------\n\n     The Transferred Assets have been properly maintained and are in good\noperating condition and there exists no outstanding notice of any violation of\nany statute or regulation relating to the Transferred Assets.  Except with\nrespect to the Retained Assets, the Transferred Assets include all assets and\nproperties and all rights reasonably necessary to permit the Purchaser to carry\non the Seller's business as presently conducted by the Seller.\n\n     4.27 Broker's Fees\n          -------------\n\n     Seller shall indemnify Buyer and hold it harmless from any liability or\nexpense arising from any claim for brokerage commissions, finder's fees or other\nsimilar compensation based on any agreement, arrangement or understanding made\nby or on behalf of Seller.\n\n                                   ARTICLE 5\n\n                REPRESENTATIONS AND WARRANTIES OF THE PURCHASER\n\n     The Purchaser hereby makes the following representations and warranties to\nthe Seller, as of the date hereof and as of the Closing, subject only to the\nPurchaser's disclosure items on the \n\n\n \ndisclosure schedule attached hereto and incorporated hereby (the \"Purchaser's\n                                                             ----------------\nDisclosure Schedule\"), the section numbers of which correspond to the section\n-------------------\nnumbers below:\n\n     5.1  Corporate Organization.\n          -----------------------\n\n     The Purchaser is a corporation duly organized, validly existing and in good\nstanding under the laws of the State of Delaware, with full corporate power and\nauthority to consummate the transactions contemplated hereby.\n\n     5.2  Authorization.\n          --------------\n\n     The execution and delivery by the Purchaser of this Agreement and the\nRelated Agreements provided for herein, and the performance of its obligations\nhereunder and thereunder, have been duly and validly authorized by all necessary\ncorporate action on the part of the Purchaser and this Agreement, and the\nRelated Agreements are or will be the valid and binding obligations of the\nPurchaser enforceable against it in accordance with their respective terms.\n\n     5.3  Brokers.\n          --------\n\n     No agent, broker, person or firm acting on behalf of the Purchaser or under\nits authority is or will be entitled to a financial advisory fee, brokerage\ncommission, finder's fee or like payment in connection with any of the\ntransactions contemplated hereby.\n  \n     5.4  Litigation.\n          -----------\n\n     There are no suits, actions, or administrative, arbitration or other\nproceedings or governmental investigations pending or, to the knowledge of the\nPurchaser, threatened against the Purchaser with respect to any of the\ntransactions contemplated hereby.\n\n     5.5  Conflicts With Other Agreements.\n          --------------------------------\n\n     The execution and delivery by the Purchaser of this Agreement and each of\nthe Related Agreements and the performance by the Purchaser of its respective\nobligations hereunder or thereunder will not, or with the giving of notice or\nthe lapse of time or both, would not:\n\n     (a) conflict with or result in a breach of or constitute a default under\nany provision of the Certificate of Incorporation or By-laws of the Purchaser or\nany contract, indenture, lease, sublease, loan agreement, restriction, lien,\nencumbrance or other obligation or liability to which the Purchaser is a party\nor by which it is affected or bound; or\n\n     (b) violate any order, writ, injunction, decree, law, statute, rule or\nregulation applicable to the Purchaser.\n\n     5.6  Consents.\n          ---------\n\n     No consent, approval or agreement of any person, party, court, government\nor entity is required to be obtained by the Purchaser in connection with the\nexecution and delivery of this \n\n\n \nAgreement or the Related Agreements, or the consummation of the transactions\ncontemplated hereby and thereby.\n\n                                   ARTICLE 6\n\n       THE SELLER'S AND THE PURCHASER'S OBLIGATIONS PRIOR TO THE CLOSING\n\n     The Seller covenants and agrees with the Purchaser and the Purchaser\ncovenants and agrees with the Seller, as follows:\n\n     6.1  Conduct of Business.\n          --------------------\n\n     From the date hereof until the Closing Date, except as the Purchaser may\notherwise consent in writing, the Seller shall conduct the Seller's business\nonly in the ordinary and usual course, and use all reasonable efforts to\npreserve intact the Seller's business organization and good will, including,\nwithout limitation, the following:\n\n     (a) using all reasonable efforts to retain the services of its management\nand employees;\n\n     (b) using all reasonable efforts to maintain its relationships with its\nsuppliers and others having business relationships with it;\n\n     (c) paying when due all taxes, assessments, fees or charges applicable to\nit except if being diligently contested in good faith by appropriate\nproceedings;\n\n     (d) not purchasing, selling or disposing of any of the Transferred Assets\nother than in the ordinary course of business or mortgaging, pledging,\nsubjecting of a lien or security interest or otherwise encumbering any of the\nTransferred Assets;\n\n     (e) not incurring any indebtedness or liability, contingent or otherwise,\nother than in the ordinary course of business consistent with past practice;\n\n     (f) except as may be required under any employment or other agreements\ncurrently in effect, not changing the compensation payable or to become payable\nto any of its officers, employees or agents or entering into any new employment\ncontract with respect to the Seller's business unless it is terminable at will\nand without penalty;\n\n     (g) not modifying or terminating any Contract listed on the Schedules\nhereto or entering into any other contract or agreement or modifying or\nterminating any such contract or agreement, other than in the ordinary course of\nbusiness; and\n\n     (h) maintaining at all times the insurance listed on Schedule 1.1(h)\n                                                          ---------------\nhereto, or equivalent insurance with substitute insurers reasonably satisfactory\nto the Purchaser.\n\n\n \n     6.2  Breach of Representations and Warranties.\n          -----------------------------------------\n\n     From the date hereof until the Closing Date or the termination of this\nAgreement pursuant to Article 11, promptly upon either party becoming aware of\nthe occurrence of, or the impending or threatened occurrence of, any event which\nwould cause or constitute a breach, or would have caused or constituted a breach\nhad such event occurred or been known to such party prior to the date hereof, of\nany of the representations and warranties of such party contained in this\nAgreement or in any schedule attached hereto, such party shall give the other\nparty notice thereof in reasonable detail and such party shall use its best\nefforts to prevent or promptly remedy the same; subject to the limitations of\nSection 10.3.\n\n     6.3  Exclusive Dealing.\n          ------------------\n\n     From the date hereof until the Closing Date, the Seller shall not, directly\nor indirectly, encourage or initiate discussions or negotiations with, or\nprovide any information to or cooperate with, or participate in any discussions\nor negotiations relating to any offers by, any corporation, partnership, person,\nor other entity or group, other than the Purchaser, concerning the purchase of\nall or substantially all of the assets of, or similar transaction involving, the\nSeller's business or the sale of all or substantially all of the capital stock\nof the Seller, or any merger or other business combination of the Seller with\nany such other entity or group.\n\n     6.4  Access.\n          -------\n\n     The Purchaser and its employees, agents, attorneys, accountants and other\nrepresentatives have been given full access to the Seller's properties, assets,\nfacilities, and books and records and have been furnished with such additional\ninformation with respect to the business and properties of the Seller's business\nor the Seller as the Purchaser or such representative has requested.  The Seller\nshall provide to the Purchaser such additional information with respect to the\nTransferred Assets between the date hereof and the Closing Date as the Purchaser\nor its representatives may reasonably request.  The Purchaser shall hold, and\nshall cause its representatives to hold, in strict confidence, and shall not\ndisclose, and shall cause its representatives not to disclose, any information\ngiven to it or its representatives regarding the Seller or the Seller's\nbusiness, except that the Purchaser may disclose such information (i) to\nemployees, representatives, attorneys or accountants in order to complete the\nPurchaser's due diligence investigation, (ii) if such information is in the\npublic domain, or comes into the public domain through no fault of the Purchaser\nor its representatives, or (iii) if such information is required to be disclosed\nby the Purchaser in order to comply with law, but only upon prior notice to the\nSeller.  In the event of termination of this Agreement, the Purchaser and its\nrepresentatives shall return to the Seller all copies of statements, documents,\nschedules or other written information obtained in connection therewith and\nshall promptly turn over or destroy all reports or analyses prepared by the\nPurchaser, or its representatives based thereon.\n\n     6.5  Violations of Law.\n          ------------------\n\n     If, prior to the Closing Date, the Seller receives an administrative or\nother order relating to any violation of any law, rule or regulation of any\nfederal, state, local or other regulatory or administrative body, including\nrules regarding the employment of labor and equal employment \n\n\n \nopportunity, the Seller may elect to remove or correct all such violations and\nto be responsible for the costs of removing or correcting the same, including\nthe payment of any fines or back pay that may be assessed for any such\nviolation.\n\n     6.6  Public Announcements.\n         ---------------------\n\n     No party hereto shall make, or permit any of its affiliates or\nrepresentatives to make, any news release or other public disclosure of this\nAgreement or the transactions contemplated hereby without the prior approval of\nthe other parties hereto, which approval shall not be unreasonably withheld.\n\n                                   ARTICLE 7\n\n               CONDITIONS PRECEDENT TO CLOSING BY THE PURCHASER\n\n     The obligation of the Purchaser to purchase the Transferred Assets and to\nconsummate the transactions contemplated hereby, is subject to the fulfillment\nand satisfaction by the Seller or waiver in writing by the Purchaser prior to or\nat the Closing Date of each of the following conditions:\n\n     7.1  Accuracy of Representations and Warranties.\n          -------------------------------------------\n\n     The representations and warranties of the Seller contained in this\nAgreement and the Related Agreements and in any schedule attached hereto and\nthereto shall be true and correct in all material respects on and as of the\nClosing Date with the same effect as though such representations and warranties\nhad been made on and as of such date and the Purchaser shall have received a\ncertificate, executed by the President and the Secretary of the Seller, dated\nthe closing Date, to such effect, subject to the actual knowledge of the\nprincipals of the Seller.\n\n     7.2  Performance Thresholds\n          ----------------------\n\n     Pagecount shall:\n\n          (i)   have a minimum of 250,000 subscribers on whose Web sites a\nPagecount banner has been displayed at least once in the month prior to the\nClosing;\n\n          (ii)  Pagecount shall have a minimum of 50,000,000 advertising\nimpressions per month which are non-adult and non-X-rated and a minimum of\n20,000,000 advertising impressions which are adult or X-rated;\n\n          (iii) Pagecount shall not have long term agreements that cannot be\nterminated within thirty (30) days' notice that exceed twenty-five (25%) percent\nof the non-adult and non-X-rated advertising inventory;\n\n\n \n     7.3  Authorization.\n          --------------\n\n     All corporate and shareholder action necessary to authorize the execution,\ndelivery and performance by the Seller of this Agreement and the transactions\ncontemplated hereby shall have been duly and validly taken.\n\n     7.4  No Material Adverse Change.\n          ---------------------------\n\n     There shall not have occurred any Material Adverse Change taken as a whole\nsince the date of this Agreement.\n\n     7.5  Bill of Sale.\n          -------------\n\n     The Seller shall have executed and delivered to the Purchaser a bill of\nsale conveying to the Purchaser all of the tangible and intangible personal\nassets to be acquired by the Purchaser, substantially in the form attached\nhereto as Exhibit D (the \"Bill of Sale\").\n          ---------       ------------   \n\n     7.6  Non-Competition Agreement.\n          --------------------------\n\n     Seller, Sal D'Ambera, Mark Burke and Paul Burke shall have executed and\ndelivered to the Purchaser a non-competition agreement, substantially in the\nform attached hereto as Exhibit E (the \"Non-Competition Agreement\").\n                        ---------       -------------------------   \n\n     7.7  Security Agreement.\n          -------------------\n\n     The Purchaser shall have executed and delivered to the Seller a Security\nAgreement, substantially in the form attached hereto as Exhibit F (the \"Security\n                                                        ---------       --------\nAgreement\").\n---------   \n\n     7.8  Management Agreement.\n          ---------------------\n\n     The Seller shall have executed and delivered to the Purchaser the\nManagement Agreement.  The Security Agreement, Management Agreement, Escrow\nAgreement and Noncompetition Agreement, are sometimes referred to herein\ncollectively as the \"Related Agreements.\"\n                     ------------------- \n\n     7.9  Opinion of the Seller's Counsel.\n          --------------------------------\n\n     The Purchaser shall have received opinions from the Seller's counsel, dated\nthe Closing Date, substantially in the form attached hereto as Exhibit G.\n                                                               --------- \n\n     7.10 Third Party Consents and Governmental Authorizations.\n          -----------------------------------------------------\n\n     All consents and approvals of third parties required to permit the Seller\nto consummate the transactions contemplated hereby, shall have been obtained by\nthe Seller.\n\n     7.11 Releases.\n          ---------\n\n     The Purchaser shall have received Releases from Mark Burke and Paul Burke\nin substantially the form of Exhibit H hereto.\n                             ---------        \n\n\n \n     7.12 Certificates; Assignments.\n          --------------------------\n\n     (a) The Purchaser shall have received from the Seller certificates, (i) as\nof the most recent practicable date, as to the legal existence of the Seller\nissued by the Secretary of State of the State of Maryland and the tax status of\nthe Seller issued by the Maryland Department of Assessment and Taxation and (ii)\ndated the Closing Date by the Secretary of the Seller, as to the incumbency and\nsignatures of those officers of the Seller authorized to execute this Agreement\nand the Related Agreements and resolutions of the Board of Directors and\nshareholders of the Seller authorizing this Agreement and the transactions\ncontemplated hereby.\n\n     (b) The Purchaser shall have received written certificates of assignment,\nnotarized and otherwise in form and content acceptable to the Purchaser,\nconfirming the assignment to the Purchaser of the copyrights and trademarks\nwhich are included within the Transferred Assets substantially in the form of\n                                                                             \nExhibit I hereto.\n---------        \n\n     7.13 Other Matters.\n          --------------\n\n     All proceedings to be taken in connection with the transactions\ncontemplated by this Agreement and all documents incident thereto shall be\nreasonably satisfactory in form and substance to the Purchaser and its counsel,\nand the Purchaser shall have received copies of all such documents and other\nevidences as it or its counsel may reasonably request.\n\n                                   ARTICLE 8\n\n                 CONDITIONS PRECEDENT TO CLOSING BY THE SELLER\n\n     The obligation of the Seller to sell the Transferred Assets and to\nconsummate the transactions contemplated hereby, is subject to the fulfillment\nand satisfaction by the Purchaser or waiver in writing by the Seller prior to or\nat the Closing Date of each of the following conditions:\n\n     8.1  Accuracy of Representations and Warranties.\n          -------------------------------------------\n\n     The representations and warranties of the Purchaser contained in this\nAgreement and the Related Agreements shall be true and correct in all material\nrespects as of the Closing Date with the same effect as though such\nrepresentations and warranties had been made on and as of such date, and the\nSeller shall have received a certificate, executed by an officer of the\nPurchaser, dated the Closing Date to such effect.\n\n     8.2  Security Agreement.\n          -------------------\n\n     The Purchaser shall have executed and delivered to the Seller the Security\nAgreement.\n\n     8.3  Management Agreement.\n          ---------------------\n\n     The Purchaser shall have executed and delivered to the Seller a counterpart\nof the Management Agreement.\n\n\n \n     8.4  Opinion of Purchaser's Counsel.\n          -------------------------------\n\n     The Seller shall have received an opinion from Morrison &amp; Foerster LLP,\ncounsel to the Purchaser, dated the Closing Date, addressed to the Seller,\nsubstantially in the form attached hereto as Exhibit J.\n                                             --------- \n\n     8.5  Authorization.\n          --------------\n\n     All corporate and shareholder action necessary to authorize the execution,\ndelivery and performance by the Purchaser of this Agreement and the Related\nAgreements and the transactions contemplated hereby and thereby shall have been\nduly and validly taken, and Seller shall have received a certificate executed by\nan executive officer of the Purchaser, dated the Closing Date, to such effect.\n\n     8.6  Other Matters.\n          --------------\n\n     All proceedings to be taken in connection with the transactions by this\nAgreement and all documents incident thereto shall be reasonably satisfactory in\nform and substance to the Seller and its counsel, and the Seller shall have\nreceived copies of all such documents and other evidences as it or its counsel\nmay reasonably request.\n\n                                   ARTICLE 9\n\n                              FURTHER ASSURANCES\n\n     9.1  Additional Instruments.\n          -----------------------\n\n     From time to time after the Closing, each party shall execute and deliver\nsuch other and further instruments of conveyance, assignment, transfer and\nconsent, and take such other action, as the other party may reasonably request\nfor the more effective conveyance and transfer of ownership of the Transferred\nAssets and the performance by the parties of their obligations under this\nAgreement and the Related Agreements.\n\n     9.2  Distribution of Sale Proceeds.\n          ------------------------------\n\n     Seller acknowledges that it has certain obligations as to distribution of\nthe proceeds from the sale of the Transferred Assets to its shareholders and may\nbe subject to claims of others due to the sale of the Transferred Assets and\nundertakes to timely perform such obligations or to contest or settle any claims\nfor which Seller has a good faith defense, if appropriate, and to indemnify and\ndefend Purchaser for any claims asserted against Purchaser in connection\ntherewith.\n\n\n \n                                  ARTICLE 10\n\n                                INDEMNIFICATION\n\n     10.1 Indemnification by Seller.\n          --------------------------\n\n     (a) In the event the Seller (i) breaches or is deemed to have breached any\nof the representations and warranties contained in this Agreement and the\nRelated Agreements, or (ii) fails to perform or comply with any of the covenants\nand agreements set forth in this Agreement and the Related Agreements, the\nSeller shall hold harmless, indemnify and defend the Purchaser, and each of its\ndirectors, officers, shareholders, attorneys, representatives and agents\n(collectively, Purchaser's \"Agents\"), from and against any Damages incurred or\n                            ------                                            \npaid by the Purchaser to the extent such Damages arise or result from a breach\nby Seller of any such representations or warranties or a violation of any\ncovenant in this Agreement. For purposes of Article 10, \"Damages\" shall mean any\n                                                         -------\nand all costs, losses, damages, liabilities, demands, claims, suits, actions,\njudgments, causes of action, assessments or expenses, including interest,\npenalties, fines and attorneys' fees and expenses incident thereto, incurred in\nconnection with any claim for indemnification arising out of this Agreement, and\nany and all amounts paid in settlement of any such claim.\n\n     10.2 Indemnification by the Purchaser.\n          ---------------------------------\n\n     In the event the Purchaser (i) breaches or is deemed to have breached any\nof the representations and warranties contained in this Agreement and the\nRelated Agreements or (ii) fails to perform or comply with any of the covenants\nand agreements set forth in this Agreement and the Related Agreements, then the\nPurchaser shall hold harmless, indemnify and defend Seller and Seller's Agents\nfrom and against any Damages incurred or paid by the Seller to the extent such\nDamages arise or result from a breach by the Purchaser of any such\nrepresentations and warranties or a violation of any covenant in this Agreement.\n\n     10.3 Limitation of Liability.\n          ------------------------\n\n     The cumulative liability of the parties pursuant to this Agreement and the\nRelated Agreements shall be limited as set forth below; provided, however, that\neither party's liability shall not be limited to the extent the representations,\nwarranties, covenants or other statements or information given by such party\nfail to meet the standard set forth in Section 10b-5(2) of the Rules promulgated\nunder the Securities Exchange Act of 1934, as amended, or to the extent Seller\nfails to perform its obligations under Section 9.2:\n\n     (a) Pagecount's liability shall be limited to the amount of the Holdback.\n\n     (b) XOOM's liability shall be limited to the amount payable under this\nAgreement and the Note.\n\n     (c) The respective indemnification obligations of the parties shall not be\neffective unless, in the case of either party, the aggregate dollar amount of\nDamages exceeds $32,500, in which case such indemnification shall be from the\nfirst dollar of Damages.\n\n\n \n     10.4 Notification of Claims.\n          -----------------------\n\n     If any party or parties (the \"Indemnified Party\") reasonably believes that\n                                   -----------------                           \nit is entitled to indemnification hereunder, or otherwise receives notice of the\nassertion or commencement of any third-party claim, action, or proceeding (a\n\"Third-Party Claim\"), with respect to which such other party or parties (the\n------------------                                                          \n\"Indemnifying Party\") is obligated to provide indemnification pursuant to\n-------------------                                                      \nSection 10.1 or 10.2 above, the Indemnified Party shall promptly give the\nIndemnifying Party written notice of such claim for Indemnification (an\n\"Indemnity Claim\").  Any claim for indemnification under Article 10 must be\n----------------                                                           \nbrought prior to the expiration of the survival period for the representation\nand warranty as set forth in Section 10.1.  The delivery of such notice of\nIndemnity Claim (\"Claim Notice\") shall be a condition precedent to any liability\n                  ------------                                                  \nof the Indemnifying Party for indemnification hereunder.  The Indemnifying Party\nshall have twenty (20) days from the receipt of a Claim Notice (the \"Notice\n                                                                     ------\nPeriod\") to notify the Indemnified Party of whether or not the Indemnifying\n------                                                                     \nParty disputes its liability to the Indemnified Party with respect to such\nIndemnity Claim\n\n     10.5 Resolution of Claims.\n          ---------------------\n\n     (a) With respect to any Indemnity Claim involving a Third-Party Claim,\nfollowing prompt notification of the Indemnifying Party, the Indemnifying Party\nshall have the option of proceeding with the defense of the Third Party Claim\nprovided (i) the Indemnifying Party has either not disputed its liability for\nthe Indemnity pursuant to Section 17.1 or the liability of the Indemnifying\nParty for the Indemnity Claim has been determined pursuant to Section 17.1, (ii)\nthe Indemnifying Party has appointed counsel acceptable to the Indemnified Party\n(whose approval shall not be unreasonably withheld) and (iii) the Indemnifying\nParty shall have assumed and agreed to bear all reasonable costs related to the\nIndemnity Claim and reimbursed the Indemnified Party for reasonable costs\nincurred, if any, by the Indemnifying Party prior to assuming the defense.\nDuring such defense proceedings, the Indemnifying Party shall keep the\nIndemnified Party informed of all material developments and events relating to\nthe proceedings.  The Indemnified Party shall have a right to be present at the\nnegotiation, defense and settlement of such Third-Party Claim.  The Indemnifying\nParty shall not agree to any settlement of the Third-Party Claim without the\nconsent of the Indemnified Party, which consent shall not be unreasonably\nwithheld.\n\n     (b) With respect to any Indemnity Claim not involving a Third-Party Claim,\nif the Indemnifying Party disputes its liability within the Notice Period, the\nliability of the Indemnifying Party shall be resolved in accordance with Section\n17.1.\n\n     (c) In the event that an Indemnified Party makes an Indemnity Claim in\naccordance with Section 10.3 and the Indemnifying Party does not dispute its\nliability within the Notice Period, the amount of such Indemnity Claim shall be\nconclusively deemed a liability of the Indemnifying Party.\n\n     10.6 Survival of Representations and Warranties.\n          -------------------------------------------\n\n     Except for the claims for which Seller's liability is not limited pursuant\nto Section 10.3, which claims shall survive until the expiration of the\napplicable statute of limitations, any claim \n\n\n \nfor any loss, liability, cost, damage or expense relating to the representations\nand warranties set forth in this Agreement shall survive the Closing and the\nconsummation of the transactions contemplated hereby for a period of one (1)\nyear after the Closing Date; provided however, that all such representations,\nwarranties and covenants shall survive after the applicable survival period with\nrespect to any claim made by a party prior to the expiration thereof until, and\nshall expire when, such claim is finally resolved. The parties hereto shall be\nentitled to rely upon such representations and warranties whether or not either\nparty relied on the representations and warranties or had knowledge, acquired\nbefore or after the date hereof, from its own investigation or otherwise, of any\nfact at variance with or any breach of any such representation or warranty.\n\n                                  ARTICLE 11\n\n                                  TERMINATION\n\n     11.1 Termination Prior to Closing Date.\n          ----------------------------------\n\n     This Agreement may be terminated and the transactions contemplated hereby\nabandoned at any time prior to the Closing Date as follows:\n\n     (a) by mutual consent of the Seller and the Purchaser;\n\n     (b) by the Purchaser if any of the conditions set forth in Article 7 hereof\nshall have become impossible of fulfillment and shall not have been waived by\nthe Purchaser;\n\n     (c) by the Seller if any of the conditions set forth in Article 8 hereof\nshall have become impossible of fulfillment and shall not have been waived by\nthe Seller;\n\n     (d) by either the Seller or the Purchaser if any action, suit or proceeding\nbefore any court or other governmental body or agency shall have been instituted\nto restrain, modify or prohibit the transactions contemplated hereby, unless\ncontested in good faith or unless the party against whom the action, suit or\nproceeding is commenced agrees to indemnify the other party against all\nliability arising therefrom, and the other party agrees to accept such\nindemnification; and\n\n     (e) by either the Purchaser or the Seller if the transactions contemplated\nhereby are not consummated on or before July __, 1998 for any reason other than\nthe failure of the party seeking termination to fulfill the conditions set forth\nin Article VII hereof, if the Seller, or Article VIII hereof, if the Purchaser.\n\n     11.2 Effect of Termination.\n          ----------------------\n\n     If this Agreement is terminated pursuant hereto, this Agreement shall\nbecome void and of no further force and effect except that such termination\nshall be without prejudice to the rights of any party because of the non-\nsatisfaction of conditions set forth in Articles VII and VIII hereof resulting\nfrom the intentional or willful breach or violation of the representations,\nwarranties, covenants or agreements of another party under this Agreement.\n\n\n \n     11.3 Termination After Closing Date.\n          -------------------------------\n\n     This Agreement may be terminated by Purchaser after the closing by\nPurchaser's delivery of the Transferred Assets (and any additional collateral in\nwhich Seller has a security interest) to Seller, except after an IPO, Corporate\nTransaction or Financing or if any of the foregoing transactions closes within\n60 days after such delivery, and Seller shall retain (or have the right to\nreceive) all sums paid or payable until the date of such termination.\n\n                                  ARTICLE 12\n\n                                   REMEDIES\n\n     12.1 Remedies.\n          ---------\n\n     The Seller agrees that the Transferred Assets are unique and that the\nPurchaser will be irreparably harmed in the event this Agreement is not\nspecifically enforced.  The parties further agree that it is impossible to\nmeasure in money the damage that will accrue by reason of a refusal by the\nSeller to perform its obligations under this Agreement.  Therefore, the Seller\nhereby acknowledges that, in the event that the Purchaser shall institute any\naction to enforce the provisions of this Agreement, the Purchaser will not have\nan adequate remedy at law and that injunctive or other equitable relief will not\nconstitute any hardship upon the Seller.\n\n                                  ARTICLE 13\n\n          COVENANTS OF THE SELLER AND THE PURCHASER AFTER THE CLOSING\n\n     The Seller covenants and agrees with the Purchaser and the Purchaser\ncovenants and agrees with the Seller, provided the Closing occurs hereunder:\n\n     13.1 Change of Name.\n          ---------------\n\n     The Seller agrees that upon payment in full of the Note it will take such\naction, and sign and file such instruments as shall be necessary to change its\nname to a name not including the words \"Pagecount\" or any variation or\n                                        ---------                     \nderivative thereof or any name confusingly similar thereto.\n\n     13.2 Uniform Tax Treatment.\n          ----------------------\n\n     The parties agree that the allocation of consideration set forth herein\namong the Transferred Assets as determined by the Purchaser (the \"Tax\n                                                                  ---\nAllocation\") shall be used by them for all federal and state income tax\npurposes, including, but not limited to, reporting pursuant to Section 1060 of\nthe Internal Revenue Code of 1986, as amended.  Prior to filing IRS Form 8594\n(\"Asset Acquisition Statement Under Section 1060\") with respect to the\n------------------------------------------------                      \ntransactions described herein, the parties shall provide to each other a true\nand correct copy of IRS Form 8594 which each intends to file with respect to\nthese transactions.\n\n\n \n     13.3 Cooperation.\n          ------------\n\n     The parties to this Agreement shall cooperate, including, without\nlimitation, during times of audit by taxing authorities and in preparation of\nTax returns, to avoid payment of duplicate or inappropriate Taxes, and each\nparty shall furnish, at the reasonable request of the other, proof of payment of\nany such Taxes or any other documentation that is a prerequisite to avoiding\npayment of a duplicate or inappropriate Tax.  Such cooperation shall include,\nwithout limitation, furnishing information regarding prior years' Tax returns\nand related work papers, rulings, and determinations by any Tax authority.\n\n                                  ARTICLE 14\n\n                               RIGHT OF SET-OFF\n\n     14.1 Right of Set-Off.\n          -----------------\n\n     Subject to the limitations on Seller's liability as set forth in Section\n10.3 above, with respect to any amounts that may be due to any party from any\nother party hereunder or otherwise, such party shall have the right to set-off\nsuch amounts against and to apply them to any amount otherwise payable by such\nparty to the other party pursuant to this Agreement and the Related Agreements.\nThe right of set-off provided for in this Section shall be in addition to any\nother rights or remedies that may be otherwise available to such party and the\nexercise of such right of set-off shall not operate as a waiver of any such\nother rights; provided, however, that Purchaser's total liability shall not\n              --------                                                     \nexceed the liability described in 10.3.\n\n                                  ARTICLE 15\n\n                            EXPENSES OF THE PARTIES\n\n     Each party will pay its respective expenses incurred in connection with the\nnegotiation, execution and performance of this Agreement, and in the case of the\nSeller, such expenses shall be paid out of the proceeds of the purchase price\npaid hereunder.\n\n\n \n                                  ARTICLE 16\n\n                                    NOTICES\n\n     16.1 Notices.\n          --------\n\n     Any notice to any party hereto given pursuant to this Agreement shall be in\nwriting addressed as follows:\n\n     if to the Seller:        Pagecount, Inc.\n                              1701 Edmondson Avenue\n                              Baltimore, MD 21228\n                              Telephone:  (410) 788-8298\n                              Telecopier:  (410) 788-7485\n\n     with a copy to:          Shulman, Rogers, Gandal, Pordy &amp; Ecker, P.A.\n                              11921 Rockville Pike\n                              3rd Floor\n                              Rockville, MD  20852\n                              Attn: James A. Powers, Esq.\n                              Telephone (301) 230-5231\n\n     if to the Purchaser:     XOOM, Inc.\n                              433 California Street, Suite 910\n                              San Francisco, CA 94104\n                              Attn:  Laurent Massa, President\n                              Telephone:  (415) 445-2525\n                              Telecopier:  (415) 445-2526\n\n     with a copy to:          Morrison &amp; Foerster LLP\n                              425 Market Street\n                              San Francisco, California 94105\n                              Attn:  Bruce A. Mann, Esq.\n                              Telephone:  (415) 268-7000\n                              Telecopier:  (415) 268-7522\n\n     Any such address may be changed by any party by written notice to the other\nparty.  Any notice shall be deemed delivered (i) if transmitted by electronic\nfacsimile transmission, when the appropriate number and answerback are\ntransmitted, (ii) if delivered personally, when received, or (iii) if mailed by\nregistered or certified mail, postage prepaid, return receipt requested, when\nreceived.\n\n\n \n                                  ARTICLE 17\n\n                              DISPUTE RESOLUTION\n\n     17.1 Arbitration.\n          ------------\n\n     Any controversy or claim between or among the parties, their agents,\nemployees and affiliates, including but not limited to those arising out of or\nrelating to this Agreement or the Related Agreements, shall, at the option of\nany party, be resolved through mandatory arbitration in accordance with the\nrules then in effect of the American Arbitration Association (\"AAA\") and Title 9\n                                                               ---              \nof the U. S. Code.  All statutes of limitations or any waivers contained herein\nwhich would otherwise be applicable shall apply to any arbitration proceeding\nunder this Section 17.1.  The parties agree that related arbitration proceedings\nmay be consolidated.  The arbitrator shall prepare written reasons for the\naward.  The location of the arbitration shall be, for a claim brought by the\nPurchaser, in Baltimore, Maryland (and Purchaser hereby consents to jurisdiction\nin Maryland for such purpose), and for a claim brought by the Seller, in San\nFrancisco, California.  The arbitrator or arbitrators shall be generally skilled\nin the legal and business aspects of the subject matter at issue.  If the\nparties so agree, a single arbitrator shall be selected jointly by the Purchaser\nand the Seller to settle the dispute.  If the parties cannot agree upon the\nselection of an arbitrator within fifteen (15) days after the receipt by one\nparty from the other of a notice of arbitration, then each party shall within\nfifteen (15) days after the expiration of said fifteen (15) day period select\none arbitrator.  If either party fails to appoint an arbitrator within that\nfifteen (15) days period, the other party may designate an arbitrator for the\nparty who failed to make such appointment.  The two arbitrators shall select a\nthird arbitrator within fifteen (15) days after their appointment; if the two\narbitrators selected by the parties cannot agree upon a third arbitrator, the\nthird arbitrator shall be appointed by the AAA.  The arbitrators shall promptly\ndetermine whether and in what amount a payment should be made to prevailing\nparty subject to Section 10.3 and shall submit a written report of their\ndecision to the Purchaser and the Seller.  The decision of the majority of the\narbitrators shall be binding upon all parties.  Judgment upon the award rendered\nmay be entered in any court having jurisdiction.\n\n     17.2 Provisional Remedies and Self Help.\n          -----------------------------------\n\n     No provision of, or the exercise of any rights under, Section 17.1 shall\nlimit the right of any party to exercise self help remedies such as set-off, or\nto obtain provisional or ancillary remedies such as injunctive relief or the\nappointment of a receiver from a court having jurisdiction before, during or\nafter the pendency of any arbitration.\n\n                                  ARTICLE 18\n\n                                 MISCELLANEOUS\n\n     18.1 Entire Agreement; Waivers.\n          --------------------------\n\n     This Agreement (including all attachments hereto) comprises the entire\nagreement between the parties hereto as to the subject matter hereof and\nsupersedes all prior agreements and understandings between them relating\nthereto.  Each party may extend the time for, or waive the \n\n\n \nperformance of, any of the obligations of the other, waive any inaccuracies in\nthe representations or warranties of the other, or waive compliance by the other\nwith any of the covenants or conditions contained in this Agreement, but only by\nan instrument in writing signed by the party granting such extension or waiver.\n\n     18.2 Attorneys Fees.\n          ---------------\n\n     If any legal action, arbitration, mediation or other proceeding is brought\nfor the enforcement of this Agreement or the Related Agreements, or because of\nan alleged dispute, breach, default, or misrepresentation in connection with any\nof the provisions of this Agreement or the Related Agreements, the successful or\nprevailing party or parties shall be entitled to recover reasonable attorneys'\nfees and other costs incurred in that action or proceeding, in addition to any\nother relief to which it or they may be entitled.\n\n     18.3 Governing Law.\n          --------------\n\n     This Agreement is made and shall be construed in accordance with the laws\nof the State of Delaware.\n\n     18.4 Successors and Assigns.\n          -----------------------\n\n     This Agreement shall inure to the benefit of, and be binding upon and\nenforceable against, the respective successors and assigns of the parties hereto\nbut may not be assigned by any party without the prior written consent of the\nother parties.\n\n     18.5 Captions.\n          ---------\n\n     Captions are supplied herein for convenience only and shall not be deemed a\npart of this Agreement for any purpose.\n\n     18.6 Counterparts.\n          -------------\n\n     This Agreement may be executed in any number of counterparts, each of which\nshall be deemed an original for all purposes.\n\n     18.7 Severability.\n          -------------\n\n     If any term or provision of this Agreement or the application thereof to\nany person or circumstances shall to any extent be invalid or unenforceable, the\nremainder of this Agreement or the application of such terms or provisions to\npersons or circumstances other than those as to which it is invalid or\nunenforceable, shall not be affected thereby and each term and provision of this\nAgreement shall be valid and enforced to the fullest extent permitted by law.\n\n\n \n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date first above written by their duly authorized officers.\n\n     The Seller:\n\n                              PAGECOUNT, INC.\n\n\n\n                              By:  \/s\/ Sal D'Ambera\n                                   --------------------------------\n                                   Sal D'Ambera, President\n     The Purchaser:\n\n\n                              XOOM, INC.\n\n\n\n                              By:  \/s\/ Laurent Massa\n                                   -------------------------------\n                                   Name: Laurent Massa\n                                   Title: CEO\n\n\n\n                         PAGECOUNT DISCLOSURE SCHEDULE\n\n\n    (THIS SCHEDULE HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n \n\n\n  \n                                   EXHIBIT A\n\n                             MANAGEMENT AGREEMENT\n\n     THIS MANAGEMENT AGREEMENT (this \"Agreement\") is made effective as of July\n                                      ---------                               \n30, 1998, by and between XOOM, INC., a Delaware corporation (\"XOOM\"), and\n                                                              ----       \nPAGECOUNT, INC., a Maryland corporation (\"Pagecount\").\n                                          ---------   \n\n                                   RECITALS\n\n     1.   Pagecount offers, operates and maintains a software utility created by\nPagecount (a \"Pagecounter\") on the Web that permits a Person with a Website to\n              -----------                                                     \nmonitor traffic on their Website, offered free of charge to any person with a\nWebsite.\n\n     2.   XOOM offers, operates and maintains a network for Persons to construct\nWeb pages.\n\n     3.   Pursuant to an Asset Purchase Agreement dated July 24, 1998 (the\n               \n\"Asset Purchase Agreement\"), XOOM purchased from Pagecount the Pagecount Service\n ------------------------\nin consideration for cash and a promissory note in the original principal amount\nof $1.2 million (the \"Note\").\n                      ----\n\n     4.   Pending payment in full of the Note (less the Holdback), and in order\nto assure that Pagecount, in the event the Note is not paid in full, can recover\nthe Pagecount Service intact and maintain effective control over the Transferred\nAssets constituting the Pagecount Service in the interim, XOOM and Pagecount\nhave agreed that Pagecount will continue to operate the Pagecount Service\npursuant to the terms and conditions of this Agreement.\n\n     NOW, THEREFORE, the parties hereto hereby agree as follows:\n\n                                   ARTICLE 1\n\n                                  DEFINITIONS\n\n     1.1  Defined Terms.\n          --------------\n\n     For the purposes of this Agreement, capitalized terms when used herein\nshall have the meanings set forth in the Asset Purchase Agreement and the\nfollowing meanings:\n\n     Banner Inventory: The aggregate of all banners appearing with a Pagecounter\n     ----------------                                                \non which Pagecount can sell advertising space, determined by the number of\nimpressions with a Pagecounter in any given calendar month.\n\n\n  \n       Contract:  All contracts and agreements to which Pagecount is party as of\n       --------                                                                 \nthe date hereof and at any time while this Agreement is in effect, including,\nbut not limited to, contracts for advertising on Pagecounter banners.\n\n       Management Fee:  The fixed, monthly management fee payable by XOOM to\n       --------------                                                       \nPagecount pursuant to Section 3.1.\n\n       Operating Budget:  The annual operating budget described in Section\n       ----------------                                                   \n2.1(h).\n\n       Pagecount's Best Efforts:  The application by Pagecount of its best skill\n       ------------------------                                                 \nand judgment in performing the obligations set forth herein in order to perform\na given task in an expeditious and economical manner consistent with Pagecount's\npresent practices and sound management and business practices.\n\n       Person:  A natural person, a corporation, a business trust, an\n       ------                                                        \nassociation, a company, a joint venture, a partnership or any other type of\nentity.\n\n       XOOM\/Pagecount Operating Account:  The bank account described in Section\n       --------------------------------                                        \n2.2(c).\n\n                                   ARTICLE 2\n\n                              PAGECOUNT'S DUTIES\n\n     2.1  Management Services.\n          --------------------\n\n     Pagecount agrees to provide XOOM management services so as to keep the\nPagecount Service operational and functional on the Web on behalf of XOOM, as\nmore fully described below, pending payment in full of the Note (less the\nHoldback) and, after payment of the Note, to transfer the Transferred Assets and\noperations of Pagecount relating to the Pagecount Service to XOOM.  To achieve\nthe foregoing, objectives, Pagecount shall, using Pagecount's Best Efforts:\n\n     (a) Contract Administration\/Compliance. Monitor and enforce compliance with\n         -----------------------------------\nall Contracts, including Contract commencement, renewal and termination\nconsistent with past practices, subject to the provisions herein, and\ncommunicate with XOOM regarding the same;\n\n     (b) Reports.  Promptly report to XOOM all problems or situations which may\n         -------                                                               \naffect the Pagecount Service or require XOOM's involvement, including, without\nlimitation, law suits and potential law suits, prospective government\ninvestigations and approvals and settlements of any disputes;\n\n     (c) Documents.  As part of the performance of its obligations hereunder,\n         ---------                                                           \nexecute Contracts on behalf of XOOM in the ordinary course of business, provided\nthat XOOM shall be informed in advance of any material Contracts and shall have\napproved them as to form and content;\n\n\n  \n     (d) Insurance.  On behalf of XOOM, obtain and maintain necessary insurance\n         ---------                                                             \ncoverage for the operation of the Pagecount Service as deemed sufficient by\nXOOM, and provide XOOM with certificates of insurance naming XOOM as an\nadditional loss payee and further providing that such insurance coverage may not\nbe canceled or terminated by Pagecount without forty-five (45) days prior\nwritten notice to that effect having been given to XOOM.  Pagecount shall\ndeliver to XOOM satisfactory evidence of such continuous insurance coverage on a\nperiodic basis.\n\n     (e) Compliance with Laws. Comply with any and all statutes, ordinances,\n         --------------------\nrules and regulations pertaining to the Pagecount Service and the requirements\nof any Contract consistent with past practices and sound business practice, and\npromptly notify XOOM of any violation of any statute, ordinance, rule or\nregulation or any threatened claims, suits or actions concerning or relating to\nthe Transferred Assets of which Pagecount becomes aware, except to the extent\nsuch noncompliance or violation would not have a Material Adverse Effect on the\nPagecount Service;\n\n     (f) Management of Personnel.  Hire, supervise, and discharge the personnel\n         -----------------------                                               \nnecessary to maintain and operate the Pagecount Service.  All such personnel\nhired will be employees solely of Pagecount or of independent contractors\nretained by Pagecount and not of XOOM.  Pagecount shall hire, train, discipline\nand discharge such employees in compliance with all applicable federal and state\nlabor laws, rules and regulations and consistent with generally accepted good\nemployment practice in the state in which such work is performed.  Pagecount\nwill not discriminate against any employee or applicant for employment because\nof race, religion, creed, color, sex or national origin or otherwise in\nviolation of applicable law;\n\n     (g) Hardware Maintenance. Maintain all of its hardware in good working\n         ---------------------\norder consistent with past practices in such manner as to support the continuous\nsmooth operation of the Pagecount Service;\n\n     (h) Operating Budget. Submit to XOOM for XOOM's review, revision and\n         ----------------\napproval in a format as mutually agreed from time to time, a proposed Operating\nBudget for the operation and maintenance of the Pagecount Service. The Operating\nBudget shall include, without limitation, detailed income and expense\ncategories. The Operating Budget that shall be in effect as of the date hereof\nis attached hereto as Schedule 2.1(h). Pagecount shall obtain written advance\n                      ---------------\napproval from XOOM for any non-budgeted or otherwise non-authorized expenditures\n(which shall not be unreasonably withheld);\n\n     (i) Records, Books of Accounts. Keep full and detailed accounts, consistent\nwith Pagecount's present accounting practices after instituting reasonable\nrecommendations by XOOM or its auditors, and exercise such controls as may be\nreasonable or necessary for proper financial management hereunder. XOOM and its\naccountants shall, upon reasonable notification be afforded access to the books,\nrecords, and Contracts relating to Pagecount and the Pagecount Service for\ninspection and copying by XOOM or its designated representatives. Financial\nreporting will include, but not be limited to, actual and projected balance\nsheets, profit and loss statements, cash flows, bank reconciliations, accounts\nreceivable and payable statements, and annual budgets. Pagecount shall prepare\nor cause to be prepared all of the foregoing in reasonable detail, and shall\npromptly furnish any and all other financial information as may from time to\ntime be reasonably requested by XOOM. All balance sheets, operating statements\nand \n\n\n  \nstatements of cash flows shall be prepared by Pagecount in accordance with\ngenerally accepted accounting principles consistently applied, and the balance\nsheet, operating statement and the statement of cash flows shall, if requested\nby XOOM, be accompanied by an opinion of independent certified public\naccountants selected and paid for by XOOM. Pagecount's regular operational\nreporting to XOOM will cover the items specified in Schedule 2.1(i) hereto;\n\n     (j) Audit. Prepare all books and records for audit in such manner as XOOM\n         -----\nor its auditor may reasonably request, and shall assist XOOM's auditors in the\nperformance of its duties and audits for each period during the term hereof, and\nfor the fiscal year immediately following the termination of this Agreement;\n\n     (k) Collections. Collect all accounts receivable, and other sums and\n         ------------\ncharges due under any obligation and immediately deposit same on behalf of XOOM\ninto the XOOM\/Pagecount Operating Account. Pagecount is authorized to endorse\nany checks for such income, whether payable to the order of XOOM or Pagecount,\nfor deposit into the XOOM\/Pagecount Operating Account (as defined in Section\n2.2(c). Pagecount will have sole signatory authority over all Pagecount bank\naccounts other than the XOOM\/Pagecount Operating Account, and XOOM will not\nattempt to terminate such authority until the Note is paid in full;\n\n     (l) Warranty Regarding Staffing.  Pagecount shall select the quantity and\n         ---------------------------                                          \nquality of the staff who will be responsible for providing the services\ndescribed in the Agreement with the same skill and judgment which Pagecount\nwould use if it bore full risk of profit and loss with respect to such\nactivities.\n\n     2.2  Management of XOOM Funds.\n          -------------------------\n\n     (a) Revenue Stream. All revenues from the Pagecount Service during the term\n         --------------\nhereof shall be revenues of XOOM and shall be collected by Pagecount for the\naccount of XOOM.\n\n     (b) Bank Accounts. Pagecount shall maintain its existing banking\n         -------------\narrangements except as otherwise approved by XOOM or specified herein.\n\n     (c) XOOM's Operating Account. XOOM shall open and maintain a separate\n         ------------------------\naccount (\"XOOM\/Pagecount Operating Account\") at the bank currently used by\n          --------------------------------\nPagecount and Pagecount shall, on a weekly basis, deposit into such account all\ncash receipts and revenues from operation of the Pagecount Service. Pagecount\nshall submit to XOOM, together with the monthly financial statements, a\nreconciliation report showing all deposits made to XOOM's Operating Account.\n\n     (d) Transfers. Transfers from and to XOOM's Operating Account shall be,\n         ---------\nwhere possible: (i) direct intra-bank transfers, if the transferor and\ntransferee accounts are maintained at the same bank, or (ii) transferred by\nfederal wire in immediately available funds, if the transferor and transferee\naccounts are maintained at different banks.\n\n\n  \n     2.3  Legal Support Services.\n          -----------------------\n\n     Pagecount shall:\n\n     (a) Proceedings. Pursue legal proceedings to enforce legal rights of XOOM\n         -----------\nin the Transferred Assets; provided, however, that such legal proceedings shall\n                           --------  -------\nbe approved in writing by XOOM prior to their commencement, and shall be\nconducted by legal counsel selected or approved by XOOM at XOOM's expense.\n\n     (b) Attorneys, Accountants, Consultants. Upon receiving the prior approval\n         ----------------------------------- \nof XOOM in each instance, engage as necessary the services of such attorneys,\naccountants and other outside professional consultants approved by XOOM to\nprovide professional services as may be necessary to carry out Pagecount's\nduties under this Agreement.\n\n     (c) Service of Process.  Advise XOOM promptly in writing of any summons,\n         ------------------                                                  \nsubpoena, or other similar legal process, and any notice, letter, or other\ncommunication whatsoever which affects or relates to Pagecount or the Pagecount\nService or XOOM which are served upon or received by Pagecount or of which\nPagecount has knowledge.\n\n     2.4  XOOM-Pagecount Meetings.\n          ------------------------\n\n     Upon reasonable request of either party, XOOM (or its representative) and\nPagecount or its representative shall conduct meetings to discuss the management\nand operation of the Pagecount Service.\n\n                                   ARTICLE 3\n\n              PAGECOUNT'S COMPENSATION, REIMBURSEMENT AND PAYMENT\n\n     3.1  Management Fee.\n          ---------------\n\n     In consideration for the management services of Pagecount described herein,\nXOOM shall pay Pagecount a fixed monthly management fee of twenty-eight thousand\nfive hundred and five dollars ($28,505) to be used by Pagecount to pay its\noverhead costs and costs of operations, except as provided herein.  If it shall\nbecome necessary or appropriate for Pagecount to render services which were not\ncontemplated and which result in material costs which were not contemplated in\nestablishing the compensation specified in this Section 3.1, Pagecount and XOOM\nshall negotiate reasonably to establish appropriate additional compensation for\nsuch services for Pagecount.\n\n\n  \n                                   ARTICLE 4\n\n                         REPRESENTATIONS AND WARRANTIES\n\n4.1  XOOM's Representations and Warranties.\n     --------------------------------------\n\n     XOOM represents and warrants to Pagecount that:\n\n     (a) Authorization. XOOM has all requisite power and authority to enter into\n         -------------\nthis Agreement and to carry out its obligations hereunder. No further action\nwill be necessary on the part of XOOM to make this Agreement valid, binding upon\nand enforceable against XOOM in accordance with its terms.\n\n     (b) No Breach of Other Obligations. The execution, delivery and performance\n         ------------------------------\nof this Agreement by XOOM does not conflict with and will not result in a breach\nor violation or constitute a default by XOOM in the observance, performance, or\nfulfillment of any obligation, covenant or condition contained in any agreement,\ncontract, lease, mortgage, indenture, instrument, judgment, decree or order to\nwhich XOOM is a party or by which XOOM may be bound or attached.\n\n     (c) Prompt and Good Faith Responses to Requests and Issues. In the course\n         ------------------------------------------------------\nof performing its responsibilities as described above, Pagecount will bring\nmatters to XOOM's attention which require decisions, direction, and possible\nfinancial resolution by XOOM. In rendering such decisions, direction or\ncontribution XOOM warrants that it will act with reasonable promptness and in\ngood faith.\n\n     (d) Maintenance of Business.  Until payment of the Note in full, XOOM will\n         -----------------------                                               \ntake all reasonable efforts to insure that, if the Note is not paid in full for\nwhatever reason, that the business of Pagecount can effectively be separated\nfrom XOOM as a viable stand-alone business enterprise.  During such time, XOOM\nwill not compete with the Pagecount Service or take steps to diminish the value\nor significantly alter the Transferred Assets.  Until payment of the Note in\nfull, XOOM will not interfere with Pagecount's control over and operation of the\nPagecount Service except as specified herein.\n\n \n     4.2  Pagecount's Representations and Warranties.\n          -------------------------------------------\n\n     Pagecount represents and warrants to XOOM that:\n\n     (a) Authorization. Pagecount has all requisite power and authority to enter\n         -------------\ninto this Agreement and to carry out its obligations hereunder. No further\naction will be necessary on the part of Pagecount to make this Agreement valid,\nbinding upon and enforceable against Pagecount in accordance with its terms.\n\n     (b) No Breach of Other Obligations. The execution, delivery and performance\n         ------------------------------ \nof this Agreement by Pagecount does not conflict with and will not result in a\nbreach or violation or constitute a default by Pagecount in the observance,\nperformance, or fulfillment of any\n\n\n  \nobligations, covenant or condition contained in any agreement, contract, lease,\nmortgage, indenture, instrument, judgment, decree or order to which Pagecount is\na party or by which Pagecount may be bound or attached.\n\n     (c) Capability. Pagecount has the necessary experience, equipment,\n         ----------\npersonnel and capability to perform its obligations under this Agreement.\n\n     (d) No Violation of Law.  The execution, delivery and performance of this\n         -------------------                                                  \nAgreement has been duly authorized by the Board of Directors of Pagecount and\ndoes not conflict with Pagecount's Articles of Incorporation and Bylaws and, to\nPagecount's knowledge, is not in violation of any provision of law.\n\n     (e) No Transfer of Ownership or Assignment.  Without the express written\n         --------------------------------------                              \nconsent of XOOM, Pagecount shall not transfer nor permit a transfer of any\ninterest in either this Agreement or the Asset Purchase Agreement, nor shall it\npermit a change, either directly or indirectly, in control of Pagecount;\nprovided, however, that nothing herein shall be construed as constituting a\n--------  -------                                                          \ndefault by Pagecount if (i) any member of Pagecount's management dies or becomes\nunable to perform his or her functions due to any illness or other disability;\nor (ii) any shares of Pagecount are transferred in connection with estate\nplanning by Pagecount's shareholders, or by will and the laws of descent and\ndistribution.\n\n     (f) Prompt and Good Faith Responses to Requests and Issues. In the course\n         ------------------------------------------------------ \nof its performance hereunder, XOOM will bring matters to Pagecount's attention\nwhich require decisions, direction, and possible financial resolution by\nPagecount. In rendering such decisions, direction or contribution, Pagecount\nwarrants that it will act with reasonable promptness and in good faith.\n\n                                   ARTICLE 5\n\n                             OPERATIONAL COVENANTS\n\n     5.1  Maintenance\/Enhancement of the Pagecount Service.\n          -------------------------------------------------\n\n     Pagecount shall maintain and enhance the Pagecount Service in cooperation\nand consultation with XOOM's engineering staff in an effort to increase the\nnumber of Websites using a Pagecounter; provided, however, that Pagecount shall\n                                        --------  -------                      \nnot be obligated to make capital investments in additional hardware or software\nrequired due to any increase in the number of Pagecounters after the date\nhereof.  Pagecount acknowledges that any hardware that XOOM contributes,\npurchases or finances for use in the Pagecount System shall remain the property\nof XOOM, but such property shall be subject to Pagecount's security interest and\notherwise subject to the terms of the Security Agreement.\n\n     5.2  Sale of Banners.\n          ----------------\n\n     Pagecount shall permit XOOM to take over sales of 50% of Pagecount's Banner\nInventory as it exists during the term of this Agreement, and to the extent\nnecessary, shall promptly terminate or renegotiate its Contracts so as to first\nmeet the requirements of this\n\n\n  \nSection 5.2 within thirty days of the date hereof. Pagecount acknowledges that\nXOOM shall have the exclusive right to any increase in Banner Inventory\ndeveloped by XOOM from XOOM's subscriber base after the date hereof, subject to\nPagecount's right to house banners set forth in Section 5.7 and the content\nrestrictions set forth in Section 5.8.\n\n     5.3  Delivery of Transferred Assets; Transfer of Operations.\n          -------------------------------------------------------\n\n     Upon payment in full of the Note (less the Holdback), Pagecount shall\ndeliver the Transferred Assets to XOOM at XOOM's expense, and assist XOOM in\nintegrating the Pagecount System into XOOM's operations with minimal\ninterruption of service by performing all of the requirements described in\nSchedule 5.3 hereto.\n\n     5.4  Negative Covenants.\n          -------------------\n\n     While this Agreement is in effect, Pagecount shall not, without XOOM's\nprior written consent (which shall not be unreasonably withheld):\n\n     (a) Increase the amount of compensation to its employees approved in the\nOperating Budget or grant any bonus or other additional compensation to its\nemployees or independent contractors other than normal sales commissions; or\n\n     (b) Engage in any business other than the operation and management of the\nPagecount Service, except to the extent as would not have a Material Adverse\nEffect on the Pagecount Service.\n\n     5.5  Best Efforts.\n          -------------\n\n     The parties hereby covenant that they shall use their best efforts to\nperform all of their obligations hereunder.\n\n     5.6  ISP Fees.\n          ---------\n\n     During the term of this Agreement, XOOM shall pay all internet service\nprovider fees in connection with the operation of the Pagecount Service.\n\n     5.7  House Banners.\n          --------------\n\n     During the term hereof, 10% of all Banner Inventory shall be utilized for\nPagecount's house banners and, at XOOM's discretion, a minimum of 10% of such\ninventory shall be utilized for XOOM's house banners, provided, however, that\n                                                      --------  -------      \nthe 10% available for XOOM's and Pagecount's house banners shall be counted as\npart of the Banner Inventory of XOOM and Pagecount pursuant to Section 5.2.\n\n     5.8  Content Restrictions.\n          ---------------------\n\n     XOOM covenants that, during the term hereof, all banners advertising\nobjectionable products or content shall only be displayed on Websites that are\nX-rated or adult in nature, as determined jointly by Pagecount and XOOM.\n\n\n  \n                                   ARTICLE 6\n\n                  INDEMNIFICATION AND LIMITATION OF LIABILITY\n\n     6.1  Pagecount's Indemnification.\n          ----------------------------\n\n     Pagecount shall indemnify, defend and hold XOOM, its affiliates, and their\nofficers, directors, employees and agents harmless from and against any and all\nlosses, liabilities, claims and damages, including without limitation attorneys'\nfees and costs (collectively, \"Losses\"), arising out of or relating to\n                               ------                                 \nPagecount's performance of the services described in this Agreement that is\ngrossly negligent or intentionally destructive, except to the extent of Losses\ndue to XOOM's intentional or grossly negligent breach of its obligations\nhereunder.\n\n     6.2  XOOM's Indemnification.\n          -----------------------\n\n     XOOM shall indemnify, defend and hold Pagecount and its officers,\ndirectors, employees and agents harmless from and against any and all Losses\narising out of or relating to:  (i) Losses arising from third party claims\nrelating to the performance by Pagecount of services under this Agreement,\nexcept to the extent Pagecount shall be obligated to indemnify XOOM with respect\nto such Losses under the provisions of Section 6.1; or (ii) any material failure\nof XOOM in the performance of its obligations to Pagecount under this Agreement.\n\n     6.3  Indemnification Procedures.\n          ---------------------------\n\n     The indemnification procedures set forth in Sections 10.4 and 10.5 of the\nAsset Purchase Agreement shall apply to any claim for indemnification hereunder.\n\n                                   ARTICLE 7\n\n                              TERM AND TERMINATION\n\n     7.1  Term.\n          -----\n\n     This Agreement shall terminate upon the first to occur of (i) XOOM's\npayment in full of the Note (less the Holdback), (ii) the Maturity Date, (iii)\nPagecount's foreclosure on the Transferred Assets, or (iv) the mutual agreement\nof Pagecount and XOOM; provided, however, that Pagecount shall not be deemed to\nhave fully performed its obligations hereunder unless it has fully complied with\nthe provisions of Section 5.3, and provided further, that the indemnification\n                                   -------- -------                          \nobligations of the parties pursuant to Article VI shall survive for a period of\none year after termination or expiration of this Agreement and the provisions of\nSection 8.12 shall survive indefinitely.\n\n     7.2  System Failure.\n          ---------------\n\n     In the event Pagecount fails to maintain the Pagecount Service up and\nrunning on the Internet for an aggregate of 24 hours in any 48 hour period, and\nprovided that XOOM is current in its obligations under the Note, Pagecount\nshall, at XOOM's expense, deliver all of the\n\n\n  \nTransferred Assets and operations of the Pagecount Service to XOOM for operation\nby XOOM, and XOOM shall accept such delivery. Following delivery of the\nTransferred Assets pursuant to this Section 7.2(b), XOOM's obligation to pay the\nManagement Fee shall terminate, but all of XOOM's other obligations pursuant to\nthe Asset Purchase Agreement, Note and Security Agreement shall remain in full\nforce and effect.\n\n     7.3  Bankruptcy.\n         -----------\n\n     In the event either party to this Agreement shall become insolvent, file a\npetition in bankruptcy or receivership, seek protection from creditors under the\nfederal bankruptcy laws, make an assignment for the benefit of creditors, or\ntake advantage of any other insolvency laws, or if an involuntary petition in\nbankruptcy is filed against either party that is not dismissed within seventy-\nfive (75) days following filing, the other party may immediately, and without\nprior notice to the other, terminate this Agreement.\n\n                                   ARTICLE 8\n\n                                 MISCELLANEOUS\n\n     8.1  Waiver.\n          -------\n\n     The delay or failure of XOOM or Pagecount in exercising any right, power or\nprivilege hereunder or any single or partial exercise of any such right, power\nor privilege or any abandonment or discontinuance of steps to enforce such a\nright, power or privilege shall not affect such right, power or privilege.  Any\nwaiver, permit, consent or approval of any kind by XOOM or Pagecount of any\nbreach or event giving rise to a right of termination hereunder, or any waiver\nof any provisions or conditions of this Agreement must be in writing and shall\nbe effective only to the extent set forth in writing.\n\n     8.2  Notices.\n          --------\n\n     All notices, approvals, consents and other communications to XOOM or\nPagecount under or in connection with this Agreement shall be pursuant to the\nnotice provisions in the Asset Purchase Agreement.\n\n     8.3  Applicable Law.\n          ---------------\n\n     This Agreement shall be governed by and construed in accordance with the\nlaws of the State of Delaware without regard for the conflicts of laws\nprincipals thereof.\n\n     8.4  Complete Agreement; Amendments.\n          ------------------------------ \n\n     This Agreement is a complete integration of every agreement and\nrepresentation made by and between XOOM and Pagecount with respect to the\nsubject matter hereof, and no implied covenant or prior oral or written\nagreement shall be held to vary the provisions hereof, any law or custom to the\ncontrary notwithstanding.  No amendment or modification of this Agreement shall\nbe effective unless incorporated in a written instrument executed by both XOOM\nand\n\n\n  \nPagecount.  XOOM and Pagecount agree to execute such other documents and\ninstruments as may be reasonably requested by the other party and as may be\nnecessary to effect the terms of this Agreement.\n\n     8.5  Underlining, Headings.\n          ---------------------\n\n     The use of underlining and the use of headings for paragraphs and\nsubparagraphs herein are only for convenience and ease of reference and shall in\nno way expand, define, or limit the scope or intent of any provision of this\nAgreement.\n\n     8.6  Binding Effect.\n          ---------------\n\n     The provisions of this Agreement shall be binding upon and inure to the\nbenefit of XOOM and Pagecount, and their respective successors and permitted\nassigns, as the context of this Agreement may require.  Throughout this\nAgreement, unless clearly inapplicable to the context, the singular shall\ninclude the plural and the use of a pronoun of one gender shall refer to all\ngenders.\n\n     8.7  Time of the Essence.\n          --------------------\n\n     Time is of the essence in XOOM's and Pagecount's observance and performance\nof their respective obligations hereunder.\n\n     8.8  Severability.\n          -------------\n\n     If any provision of this Agreement is held to be invalid or unenforceable,\nthe validity and enforceability of the other provisions of this Agreement will\nremain unaffected.\n\n     8.9  Computation of Time Periods.\n          ----------------------------\n\n     All periods of time referred to in this Agreement shall include all\nSaturdays, Sundays and state or national holidays; provided, however, that if\n                                                   --------  -------         \nthe last date to perform any act or given any notice with respect to this\nAgreement shall fall on a Saturday, Sunday or state or national holiday, such\nact or notice may be timely performed or given on the next succeeding day which\nis not a Saturday, Sunday or state or national holiday.\n\n     8.10 Counterparts; Facsimile.\n          ------------------------\n\n     The parties hereto agree that this document may be executed in\ncounterparts, each of which shall be deemed an original, and said counterparts\nshall together constitute one and the same document, binding all of the parties\nhereto, notwithstanding that all of the parties are not signatory to the\noriginal or the same counterparts.  For all purposes, including, without\nlimitation, recordation, filing and delivery of this document, duplicate\nunexecuted and unacknowledged pages of the counterparts may be discarded and the\nremaining pages assembled as one document.  Facsimile transmitted signatures\nshall be deemed effective.\n\n\n  \n     8.11 Assignment by Pagecount.\n          ------------------------\n\n     Other than in connection with the consummation of the transactions\ndescribed in the recitals hereto, Pagecount shall not assign or encumber its\ninterest in the Agreement or any part thereof, and any attempted assignment or\nencumbrance shall be null and void.\n\n     8.12 Dispute Resolution.\n          -------------------\n\n     Any controversy, claim or dispute of whatever nature arising out of or\nrelating to this Agreement or the validity, enforceability, breach or\ntermination of this Agreement, whether such controversy, claim or dispute is\nbased upon statute, contract, tort, common law or otherwise, and whether such\ncontroversy, claim or dispute existed prior to or arises after the date of this\nAgreement (any such controversy, claim or dispute being a \"Dispute\"), shall be\n                                                           -------            \nresolved in confidential proceedings and in accordance with the procedures set\nforth in this section, which procedures shall be the sole and exclusive\nprocedures for the resolution of any Dispute.\n\n     (a) Negotiations.  XOOM and Pagecount, promptly and in good faith, shall\n         ------------                                                        \nattempt to resolve any Dispute by negotiation between the Chairman of XOOM or\nhis designee, on behalf of XOOM and the Chairman of Pagecount, on behalf of\nPagecount.  Any party to this Agreement may give to the other party to this\nAgreement written notice of any Dispute and, within seven (7) days after the\ngiving of such notice, the recipient of such notice shall give a written\nresponse to the other party to this Agreement.  Each notice of a Dispute and\neach response to any such notice shall include a statement of the position of\nthe party giving such notice or response in respect of such Dispute and a\nsummary of the arguments supporting such position.  Within fourteen (14) days\nafter the giving of a notice of a Dispute under this subsection, the\nrepresentatives of XOOM and Pagecount shall meet at a mutually acceptable time\nand place, and thereafter as often as such persons reasonably deem necessary, to\nattempt to resolve such Dispute.  All reasonable requests for information made\nby any party to this Agreement shall be honored.  If any Dispute has not been\nresolved by negotiation pursuant to this subsection within twenty-eight (28)\ndays after the giving of the notice of such Dispute, then any party to this\nAgreement may initiate arbitration of such Dispute pursuant to Section 8.12(b).\nAll negotiations and arbitration pursuant to Section 8.12(b) shall be\nconfidential and such negotiations shall be treated as compromise and settlement\nnegotiations.  Nothing said or disclosed, and no document produced, in the\ncourse of such negotiations or arbitration, as the case may be, which is not\nindependently discoverable shall be offered or received as evidence or used for\nimpeachment or for any other purpose in any arbitration or litigation.\n\n     (b) Arbitration. If any Dispute has not been resolved by negotiation\n         -----------\npursuant to Section 8.12(a), then such Dispute shall be determined by\narbitration in accordance with the arbitration provisions of the Asset Purchase\nAgreement; provided; however that pending the outcome of such arbitration, XOOM\nshall continue to pay Pagecount the Management Fee so long as (i) Pagecount\ncontinues to deposit all revenues from the Pagecount Service into the\nXOOM\/Pagecount Operating Account and (ii) the amount of such revenues equals or\nexceeds the amount of the Management Fee.\n\n\n  \n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date first above written.\n\n\n                                   XOOM: XOOM, Inc.\n \n                                         By:____________________________________\n                                         Name:__________________________________\n                                         Its:___________________________________\n\n\n                              Pagecount: Pagecount, Inc.\n\n                                         By:____________________________________\n                                         Name:__________________________________\n                                         Title:_________________________________\n\n\n  \n                                   EXHIBIT B\n\n                            SECURED PROMISSORY NOTE\n\n\n$1,200,000\n\n                                                                   July 30, 1998\n                                                       San Francisco, California\n\n          FOR VALUE RECEIVED, the undersigned XOOM, Inc. (\"Debtor\") promises to\npay to the order of Pagecount, Inc. (\"Pagecount\"), at 171 Edmondson Avenue,\nBaltimore, MD 21228, or such other place as Pagecount may designate in writing,\nthe principal sum of One Million Two Hundred Thousand Dollars ($1,200,000),\ntogether with interest in arrears from the date hereof on the unpaid principal\nbalance hereunder from time to time owing at the rate of seven percent (7%) per\nannum.  Interest shall be compounded monthly, and all calculations of interest\nshall be on the basis of a 365-day year.\n\n          Payments of principal and interest shall be made in equal and\nconsecutive monthly installments of principal and interest, each in the amount\nof Fifty-Three Thousand Seven Hundred Twenty-Seven Dollars ($53,727) (each an\n\"Installment\"), commencing on the first monthly anniversary of the date hereof\nand continuing on the same day of each month thereafter, with all outstanding\nprincipal and interest due on or before 270 days from the date hereof (the\n\"Maturity Date\"), unless this Note is earlier accelerated pursuant to the terms\nhereof.  Debtor may prepay this Note, in part or in full, at any time without\npenalty, at Debtor's sole discretion.  Any prepayments shall be applied first to\naccrued interest and then to principal.\n\n          This Note is issued pursuant to that Asset Purchase Agreement dated\nJuly 24, 1998 (the \"Agreement\") between Debtor and Pagecount.  Capitalized terms\nused herein and not otherwise defined shall have the meanings given them in the\nAgreement.\n\n          Upon (i) the first to occur of Debtor's receipt of the proceeds of an\nIPO, the closing of a Corporate Transaction, Change of Control, or  Financing,\nor (ii) Debtor's failure to cure any default hereunder twenty days after having\nreceived written notice of such default from Pagecount, given pursuant to the\nAgreement, the entire unpaid balance of this Note, together with interest\naccrued thereon, shall be immediately due and payable.  Any amounts owed\nhereunder upon acceleration of this Note shall bear interest at the annual rate\nof twelve percent (12%) or such lesser rate as is the maximum rate allowable by\nlaw.\n\n     Upon the Maturity Date, acceleration or in the event Debtor opts to prepay\nthis Note in full, Debtor shall, pursuant to the Agreement, deposit the final\n$200,000 of principal hereunder into an escrow account governed under that\nEscrow Agreement of even date herewith by and among Debtor, Pagecount and an\nescrow agent, upon which this Note shall be deemed paid in full.\n\n\n  \n     This Note shall be secured by Debtor's entire interest in the Collateral\n(as defined in the Security Agreement of even date herewith by and between\nDebtor and Pagecount  (the \"Security Agreement\")).  If Debtor defaults in any\npayment due hereunder, upon acceleration or otherwise, and fails to cure such\ndefault within 20 days after Pagecount's giving notice thereof to Debtor\npursuant to the Agreement, Pagecount shall be entitled to foreclose on its\nsecurity interest in the Collateral and to retain any Installments and other\npayments received from Debtor.  Notwithstanding the foregoing, Debtor may, at\nany time, discharge and satisfy its outstanding payment and performance\nobligations to Pagecount under this Note and the Agreement by delivering the\nCollateral to Pagecount, except if an IPO, Corporate Transaction, Change of\nControl or Financing has closed, or any of the aforesaid transactions closes\nwithin 60 days of Debtor's delivery of the Collateral.\n\n     If any legal action is necessary to enforce or collect this Note, the\nprevailing party shall be entitled to reasonable attorneys' fees in addition to\nany other relief to which that party may be entitled, whether or not suit on\nthis Note is filed, and all such costs and expenses shall be payable on demand.\n\n          This Note may not be modified orally, but only by an agreement in\nwriting signed by the party against whom such agreement is sought to be\nenforced.  Debtor hereby waives presentment, protest, demand, diligence, and\nnotice of dishonor and of nonpayment.\n\n     This Note shall be interpreted and enforced in all respects in accordance\nwith the internal laws of the State of Delaware.\n\n     IN WITNESS WHEREOF, the undersigned has caused this Note to be executed by\nits officers duly authorized to do so.\n\n                                          DEBTOR:\n\n\n                                         XOOM, INC.\n\n\n\n                                        By:__________________________\n                                        Laurent Massa, President\n\n\n\nAPPROVED AND ACCEPTED\n\nPAGECOUNT, INC.\n\n\nBy:________________________\n  Sal D'Ambera, President\n\n\n  \n                                   EXHIBIT C\n                                ESCROW AGREEMENT\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n  \n                                   EXHIBIT D\n                                  BILL OF SALE\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n                                   EXHIBIT E\n                              NONCOMPETE AGREEMENT\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n                                   EXHIBIT F\n                               SECURITY AGREEMENT\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n                                   EXHIBIT G\n                          OPINION OF SELLER'S COUNSEL\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n                                   EXHIBIT H\n                                    RELEASES\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n                                   EXHIBIT I\n              ASSIGNMENT OF TRADEMARKS AND TRADEMARK APPLICATIONS\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n\n  \n                                   EXHIBIT J\n                        OPINION OF  PURCHASER'S COUNSEL\n\n    (THIS EXHIBIT HAS NOT BEEN FILED AS IT HAS BEEN DEEMED IMMATERIAL TO AN\n INVESTMENT DECISION PURSUANT TO THE PROVISIONS OF ITEM 601(B)(2) OF REGULATION\nS-K.  THE REGISTRANT AGREES TO FURNISH A COPY OF THIS EXHIBIT TO THE COMMISSION\n                                UPON REQUEST.)\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9374],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9623,9622],"class_list":["post-43315","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-xoom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43315","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43315"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43315"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43315"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43315"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}