-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BUQ1iMSERn8Ddy1v/VG9TUjKR6w0+LO88sO2RBsynAQ55s27JbsalwOft0686FDh bAxAphno06TYZJ2VgRAQYQ== 0000912057-99-009031.txt : 19991213 0000912057-99-009031.hdr.sgml : 19991213 ACCESSION NUMBER: 0000912057-99-009031 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19991210 GROUP MEMBERS: GE INVESTMENTS SUBSIDIARY, INC. GROUP MEMBERS: GENERAL ELECTRIC CO GROUP MEMBERS: NATIONAL BROADCASTING COMPANY HOLDING, INC. GROUP MEMBERS: NATIONAL BROADCASTING COMPANY, INC. GROUP MEMBERS: NBC MULTIMEDIA, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NBC INTERNET INC CENTRAL INDEX KEY: 0001089754 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 943333463 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-57249 FILM NUMBER: 99773030 BUSINESS ADDRESS: STREET 1: 300 MONTGOMERY STREET SUITE 300 CITY: SAN FRANCISCO STATE: CA ZIP: 94104 BUSINESS PHONE: 4152882500 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL ELECTRIC CO CENTRAL INDEX KEY: 0000040545 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC & OTHER ELECTRICAL EQUIPMENT (NO COMPUTER EQUIP) [3600] IRS NUMBER: 140689340 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 3135 EASTON TURNPIKE STREET 2: C/O BANK OF NEW YORK CITY: FAIRFIELD STATE: CT ZIP: 06431 BUSINESS PHONE: 203-373-2441 MAIL ADDRESS: STREET 1: 3135 EASTON TURNPIKE CITY: FAIRFIELD STATE: CT ZIP: 06431 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Information to Be Included in Statements Filed Pursuant To Rule 13d-1(a) and Amendments Thereto Filed Pursuant to Rule 13d-2(a) (Amendment No. __) NBC INTERNET, INC. - -------------------------------------------------------------------------------- (Name of Issuer) Class A Common Stock, par value $.0001 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 62873D-10-5 --------------------------------------------------------- (CUSIP Number) Richard Cotton, Executive Vice President and General Counsel, National Broadcasting Company, Inc. 30 Rockefeller Plaza, New York, NY 10012, (212) 664-7024 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 30, 1999 --------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. SEE Rule 13d-7(b) for other parties to whom copies are to be sent. (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, SEE the NOTES). SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 62873D-10-5 Page 2 of 31 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NATIONAL BROADCASTING COMPANY, INC. 14-1682529 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC, OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 24,550,708** EACH ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 24,550,708** - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,550,708** - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES** /X/ - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! ** Includes 24,550,708 shares issuable upon conversion of Class B common stock of the Issuer, par value $.0001 per share, and excludes 471,031 shares issuable upon conversion of 471,031 shares of Class B common stock of the Issuer, par value $.0001 per share, issuable upon conversion of a convertible debenture which cannot be so converted until after November 30, 2000, and excludes 30,000 shares held by Robert C. Wright. SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. _________ Page 3 of 31 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GENERAL ELECTRIC COMPANY 14-0689340 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY -0- EACH ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON Beneficial Ownership of all Shares disclaimed by General Electric Company - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Not Applicable (see 11 above) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. _________ Page 4 of 31 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NATIONAL BROADCASTING COMPANY HOLDING, INC. 13-3448662 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /x/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY -0- EACH ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON Beneficial Ownership of all Shares disclaimed by National Broadcasting Company Holding, Inc. - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Not Applicable (see 11 above) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. _________ Page 5 of 31 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON NBC MULTIMEDIA, INC. 13-3716867 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/ (b) /x/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) /_/ - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 24,550,708** EACH ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 24,550,708** - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,550,708** - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES** /x/ - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! ** Includes 24,550,708 shares issuable upon conversion of Class B common stock of the Issuer, par value $.0001 per share, and excludes 471,031 shares issuable upon conversion of 471,031 shares of Class B common stock of the Issuer, par value $.0001 per share, issuable upon conversion of a convertible debenture which cannot be so converted until after November 30, 2000, and excludes 30,000 shares held by Robert C. Wright. SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. _________ Page 6 of 31 Pages - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GE INVESTMENTS SUBSIDIARY, INC. _______________ - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/ (b) /x/ - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) /_/ - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ------------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY -0- EACH ------------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH -0- ------------------------------------------------------ 10 SHARED DISPOSITIVE POWER -0- - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON -0- - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES** /x/ - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Not Applicable (see 11 above) - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! ** Does not include 5,338,357 shares issuable upon conversion of 5,338,357 shares of Class B common stock of the Issuer, par value $.0001 per share, issuable upon conversion of a convertible debenture which cannot be so converted until after November 30, 2000. CUSIP _____________ Page 7 of 31 Pages STATEMENT PURSUANT TO RULE 13d-1 OF THE GENERAL RULES AND REGULATIONS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED ITEM 1. Security and Issuer. The title and class of equity security to which this statement on Schedule 13D relates is the Class A common stock, par value $.0001 per share ("Class A Stock"), of NBC Internet, Inc., a Delaware corporation (the "Issuer"). The Issuer also has outstanding Class B common stock, par value $.0001 per share, which is convertible into Class A Stock and which is not publicly traded ("Class B Stock"). The address of the Issuer's principal executive offices is 300 Montgomery Street, 3rd Floor, San Francisco, California 94104. ITEM 2. Identity and Background. This statement is being filed by National Broadcasting Company, Inc. ("NBC"), a Delaware corporation, for and on behalf of itself, General Electric Company ("GE"), National Broadcasting Company Holding, Inc. ("NBC Holding"), NBC Multimedia, Inc. ("Multimedia") and GE Investments Subsidiary, Inc. ("Investments Sub"). Multimedia is a wholly-owned subsidiary of NBC. NBC is a wholly-owned subsidiary of NBC Holding, and NBC Holding is a wholly-owned subsidiary of GE. Investments Sub is a wholly-owned subsidiary of GE. NBC, GE, NBC Holding, Multimedia and Investments Sub are referred to herein as the "Reporting Persons". An agreement among the Reporting Persons with respect to the filing of this statement is attached hereto as Exhibit 1. NBC is a Delaware corporation with its principal executive offices located at 30 Rockefeller Plaza, New York, New York 10112. The principal business activities of NBC are the operation of television and cable broadcast networks and television stations and the provision of related media and Internet services. Multimedia is a Delaware corporation with its principal executive offices located at 30 Rockefeller Plaza, New York, New York 10112. The principal business activities of Multimedia are the development and operation of and investment in interactive and other new CUSIP _____________ Page 8 of 31 Pages media ventures. NBC Holding is a Delaware corporation with its principal executive offices located at 30 Rockefeller Plaza, New York, New York 10112. NBC Holding is a holding company which owns all the common stock of NBC. GE is a New York corporation with its principal executive offices located at 3135 Easton Turnpike, Fairfield, Connecticut 06431. GE engages in providing a wide variety of industrial, commercial and consumer products and services. Investments Sub is a Delaware corporation with its principal executive offices located at 3135 Easton Turnpike, Fairfield, Connecticut 06431. Investments Sub is engaged in the business of investing in debt and equity instruments and managing its portfolio of such investments. Robert C. Wright is the President and Chief Executive Officer of NBC, and his business address is 30 Rockefeller Plaza, New York, New York 10112. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of each of the Reporting Persons are set forth on Schedules A, B and C attached hereto. Except as set forth on Schedule D hereto, during the last five years none of the Reporting Persons, nor, to the best of their knowledge, any of their directors or executive officers, has been (i) convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws. This statement is being filed while the Reporting Persons are in the process of verifying information required herein from their respective directors and executive officers. If the Reporting Persons obtain information concerning such individuals which would cause a material change in the disclosure contained herein, an amendment to this statement will be filed that will disclose such change. ITEM 3. Source and Amount of Funds or Other Consideration. On July 30, 1999 NBC acquired 960,028 shares of common stock of Xoom.com ("Xoom"), par value $0.0001 per share ("Xoom Common Stock"), for $57.29 per share in cash under a stock purchase agreement dated June 11, 1999. The source of funds used to purchase the shares of Xoom Common Stock was the working capital of NBC. CUSIP _____________ Page 9 of 31 Pages On November 29 and 30, 1999, a series of transactions contemplated by the Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger (which is attached as Exhibit 2 hereto), as amended by the amendment attached as Exhibit 3 hereto (as amended, the "Second Amended and Restated Agreement") among Xoom and certain of its subsidiaries and NBC and certain of its affiliates was consummated. Initially, on November 29, 1999, each share of Xoom Common Stock was converted into the right to receive one share of Class A Stock, and as a result, Multimedia received 960,028 shares of Class A Stock (which on November 30, 1999 was automatically converted into Class B Stock in connection with the merger of Neon Media Corporation ("NMC") and the Issuer described below). On November 30, 1999, (A) each share of NMC common stock was exchanged for one share of Class B Stock, which resulted in the issuance of 12,173,111 shares of Class B Stock to Multimedia; and (B) Multimedia, in exchange for its ownership interests in SNAP! LLC (including its options to purchase additional equity interests in SNAP! LLC), received (x) 11,417,569 shares of Class B Stock and (y) a $39,477,953 zero coupon convertible debenture due 2006 from the Issuer, a copy of which is attached as Exhibit 4 to this Schedule 13D ("Convertible Note 1"), which will be convertible by its holder into 471,031 shares of Class B Stock at any time after November 30, 2000. Also on November 30, 1999, Investments Sub received a $447,416,805 zero coupon convertible debenture due 2006 from the Issuer, a copy of which is attached as Exhibit 5 to this Schedule 13D ("Convertible Note 2", and together with Convertible Note 1, the "Convertible Notes") in exchange for the assignment to the Issuer of a promissory note of NBC in the amount of $340 million. Convertible Note 2 may be converted by its holder into 5,338,357 shares of Class B Stock at any time after November 30, 2000. Each Convertible Note matures on November 30, 2006, the seventh anniversary of the closing of the transactions contemplated by the Second Amended and Restated Agreement. In the event of a change of control, merger or similar transaction, each Convertible Note is redeemable at the purchaser's option at a price equal to the aggregate principal amount or equivalent value in shares. The Issuer may redeem each of the Convertible Notes after the fifth anniversary of the closing at a redemption price equal to the principal at maturity less any original issue discount not accrued on the redemption date. Payments of principal and interest are subordinated in right of payment to the prior payment in full of the Issuer's other indebtedness. However, such subordination does not limit payments of principal or interest unless, at the time of such payment, there is a default in payments of principal or interest under the Issuer's other indebtedness. CUSIP _____________ Page 10 of 31 Pages On November 17, 1999, Robert C. Wright, the President and Chief Executive Officer of NBC, acquired 17,000 shares of Xoom Common Stock for an aggregate purchase price of $1,056,349, each share of which was automatically converted into the right to receive one share of Class A Stock in connection with the transactions occurring on November 29, 1999 described above. On December 8, 1999, Mr. Wright purchased an additional 13,000 shares of Class A Stock for an aggregate purchase price of $808,025. Mr. Wright used his personal funds in payment of the purchase price of each acquisition. ITEM 4. Purpose of Transaction. The Reporting Persons entered into the transactions under the Second Amended and Restated Agreement and acquired the shares of Class B Stock as described in this Item 4 of this Schedule 13D in order to acquire a substantial equity interest in the Issuer and consolidate the businesses of Xoom, SNAP! LLC and certain of NBC's Internet assets in a single operating entity. The Reporting Persons have acquired certain rights and assumed certain obligations with respect to the Issuer which are set forth in the various related agreements that were entered into with respect to these transactions, each of which is filed as an exhibit hereto (as indicated below) and incorporated by reference herein. As the holders of the outstanding Class B Stock, the Reporting Persons also are entitled to certain rights under the Issuer's Restated Certificate of Incorporation. In particular, the Governance and Investor Rights Agreement, a copy of which is attached as Exhibit 6 hereto (the "Governance and Investor Rights Agreement") sets forth terms pertaining to, among other things, restrictions on acquisition and disposition of the Issuer's securities by NBC and board representation rights. As of the date hereof, NBC and Multimedia beneficially owned 24,550,708 shares of the Class A Stock (including shares issuable upon conversion of Class B Stock, but excluding shares issuable upon conversion of the Convertible Notes), which amounted to approximately 47.3% of the outstanding common stock of the Issuer. If the Convertible Notes are converted after November 30, 2000, NBC and its affiliates could own approximately 52.6% (assuming no issuances of additional shares) of the common stock of the Issuer. Only the Class A Stock is publicly traded. Except for certain matters specified in the Governance and Investor Rights Agreement and the Issuer's restated certificate of incorporation, the Class A Stock and Class B Stock have the same voting rights. The holders of the Class B Stock have the right to appoint six of the 13 members of the Issuer's board of directors (and will retain such right so long as such holders own 20% of the outstanding shares of common stock of the Issuer) and the holders of the Class A Stock have the right to appoint the remaining seven members, with the seventh member requiring the CUSIP _____________ Page 11 of 31 Pages nomination of at least seven members of the Issuer's board of directors. However, if the Convertible Notes are converted in full at a time when NBC and its affiliates owns 35% or more of the outstanding shares of common stock of the Issuer, then the holders of the Class B Stock would have the right to appoint seven of the 13 members of the Issuer's board of directors and the holders of the Class A Stock would have the right to appoint the remaining six members. As long as the directors elected by the holders of the Class B Stock do not constitute a majority of the Issuer's board of directors, certain actions by the Issuer will require the approval of the directors elected by the holder of Class B Stock. As long as the holders of the Class B Stock have the right to elect seven directors to the Issuer's board of directors, certain actions by the Issuer will require the approval of the directors elected by the holders of the Class A Stock. The foregoing description of the Governance and Investor Rights Agreement and Convertible Notes does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of the Governance and Investor Rights Agreement and the Convertible Notes filed as exhibits hereto. In addition, CNET, Inc., a Delaware corporation ("CNET") has entered into an agreement with NBC, as further described below in Item 6 of this Schedule 13D, under which (i) CNET has agreed to vote its shares of Class A Stock in the same manner as NBC with respect to certain change in control transactions involving the Issuer and (ii) NBC has a right of first offer to purchase shares of Class A Stock owned by CNET. Subject to the terms of the Governance and Investor Rights Agreement, while it is not their present intention to do so, the Reporting Persons may seek to acquire additional shares of Class A Stock or other securities of the Issuer through open market purchases, privately negotiated transactions, a public tender offer, a merger, reorganization or comparable transaction or otherwise. Alternatively, while it is not their present intention to do so and the Governance and Investor Rights Agreement restricts their ability to do so, the Reporting Persons may dispose of some or all of their interest in the securities of Issuer held by them in the open market, in privately negotiated transactions with third parties, through a public offering upon exercise of the registration rights outlined in Item 6 of this Schedule 13D, or otherwise, depending on the course of action the Reporting Persons pursue, market conditions and other factors. Although the foregoing represents the range of activities that may be taken by the Reporting Persons with respect to the Issuer, the possible activities of the Reporting Persons are subject to change at any time. All such activities would be performed in compliance with all applicable laws and regulations. Except as set forth above, none of the Reporting Persons has any present plans or CUSIP _____________ Page 12 of 31 Pages proposals which relate to or would result in any actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. ITEM 5. Interest in Securities of the Issuer. (a) The responses of the Reporting Persons to Rows (7) through (13) of the cover page of this statement on Schedule 13D are incorporated herein by reference. As of the date hereof, (i) NBC beneficially owned in the aggregate 24,550,708 shares of Class A Stock, representing approximately 47.3% of the outstanding shares of Class A Stock, (ii) Multimedia beneficially owned in the aggregate 24,550,708 shares of Class A Stock, representing approximately 47.3% of the outstanding shares of Class A Stock, and (iii) Robert C. Wright beneficially owned 30,000 shares of Class A Stock, representing less than 1% of the outstanding shares of Class A Stock, in each case including shares of Class A Stock issuable upon conversion of outstanding shares of Class B Stock, but excluding all shares of Class A Stock issuable upon conversion of shares of Class B Stock issuable upon conversion of the Convertible Notes, which may not be converted until after November 30, 2000. GE, Investments Sub and NBC Holding disclaim beneficial ownership of all shares owned by NBC and Multimedia. Each of the Reporting Persons disclaims beneficial ownership of the shares of Class A Stock owned by Mr. Wright. All percentages set forth in this Item 5 are calculated including (i) approximately 27,365,472 shares of Class A Stock outstanding on the date hereof and (ii) 24,550,708 shares of Class A Stock issuable upon conversion of the outstanding Class B Stock. All percentages set forth in this Item 5 are calculated excluding all shares of Class B Stock issuable upon conversion of the Convertible Notes. All numbers and percentages set forth in this Item 5 assume that all shares of Class B Stock owned by the Reporting Persons are converted into shares of Class A Stock. Except as disclosed in Item 3 and this Item 5(a), none of the Reporting Persons, nor, to the best of their knowledge, any of their directors or executive officers, beneficially owns any shares of Class A Stock. (b) The responses of the Reporting Persons to (i) Rows (7) through (13) of the cover pages of this statement on Schedule 13D and (ii) Item 5(a) hereof are incorporated herein by reference. Except as disclosed in this Item 5, none of the Reporting Persons, nor to the best of their knowledge, any of their directors or executive officers, presently has the power to vote or to direct the vote or to dispose or direct the disposition of any shares of Class A Stock other than shares of Class A Stock which they may be deemed to beneficially own. (c) Except as disclosed in Item 3 hereof, none of the Reporting Persons, nor, to the best of their knowledge, any of their directors or executive officers, has effected any transaction CUSIP _____________ Page 13 of 31 Pages in the Common Stock of the Company during the past 60 days. (d) Not applicable. (e) Not applicable. ITEM 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The responses to Items 3 and 4 of this Schedule 13D are incorporated herein by reference. NBC, the Issuer, Investments Sub, CNET, Flying Disc Investments Limited Partnership and Chris Kitze have entered into a registration rights agreement, a copy of which is attached as Exhibit 7 hereto (the "Registration Rights Agreement"). Under the Registration Rights Agreement, the Issuer will have the obligation to file a registration statement with the Securities and Exchange Commission upon the request of NBC, CNET, Mr. Kitze or any of their respective transferees for an offering to be made on a continuous basis covering a minimum of $50 million of shares of Class A Stock at any time following the later of the 12-month anniversary of the date of the Registration Rights Agreement (November 30, 1999) and the date upon which the Issuer is first able to file such registration statement on Form S-3. At any time and from time to time during the period in which there is no effective shelf registration statement covering all of the Class A Stock registrable under the Registration Rights Agreement, NBC, CNET, Mr. Kitze or any of their respective transferees may make a written demand that the Issuer effect the registration under the Securities Act of all or part of their shares of Class A Stock, provided that NBC and its transferees, on behalf of NBC and Investments Sub, shall have only four such demand rights and the market value of the shares to be included in each demand registration on Form S-1 must be at least $25,000,000, valued at the time of such request. If, at any time, the Issuer proposes to register any of its equity securities, whether for its own account or for the account of a third party, each party to the Registration Rights Agreement may request that the Issuer include any or all of their shares in the registration. The Registration Rights Agreement also contains other terms and conditions customary for similar transactions. The description of the Registration Rights agreement contained in this Schedule 13D is qualified in its entirety by reference to the Registration Rights Agreement attached hereto as Exhibit 7. The Issuer has also issued the Convertible Notes to Multimedia and Investments Sub as described in Item 3 above. If both Convertible Notes are converted in full at a time when NBC and its affiliates own 35% or more of the outstanding shares of the Issuer's common stock, the holders of the Class B Stock would have the right to elect seven of the 13 members of the Issuer's board of directors and the holders of the Class A Stock would have the right to elect the remaining six directors. If both of the CUSIP _____________ Page 14 of 31 Pages Convertible Notes are not converted in full, the holders of the Class B Stock will have the right to elect six of the 13 members of the Issuer's board of directors. The holders of the Class A Stock will have the right to elect the remaining seven directors. The description of the Convertible Notes contained in this Schedule 13D is qualified in its entirety by reference to the Convertible Notes attached hereto as Exhibits 4 and 5. NBC and the Issuer have entered into the Governance and Investor Rights Agreement with respect to the governance of the Issuer. Pursuant to the Governance and Investor Rights Agreement, NBC agreed not to, and to cause each of the Reporting Persons and its affiliates not to, without the prior approval of the directors nominated by the Class A Stock and subject to certain exceptions: (a) acquire, offer to propose to acquire, or agree to acquire additional shares of the Issuer; (b) solicit proxies in connection with an amendment to the Issuer's restated certificate of incorporation or for the election of Class A directors; or (c) propose to the holders of the Class A Stock a merger, business combination or similar transaction ((a),(b) and (c) collectively, the "Standstill Restrictions"). In addition to certain specified exceptions, the foregoing Standstill Restrictions on NBC and its affiliates only apply until the earliest to occur of the following events: (i) November 30, 2002; (ii) the first anniversary of the date on which NBC and its restricted affiliates or any filing group of which they are a part no longer owns any shares of Class B Common Stock; (iii) a third party tender offer; (iv) the date the Issuer enters into an agreement that will result in a change of control of the Issuer or (v) any change of control of the Issuer. The restrictions may, however, be reinstated if the third party tender offer giving rise to their termination is withdrawn or terminated. The Governance and Investor Rights Agreement also contains restrictions on transfer by NBC and its affiliates and provisions which grant NBC certain rights to purchase a proportional share of additional shares of Class B Stock in the event the Issuer issues shares of capital stock and the right to designate nominees to the board of directors of the Issuer. The description of the Governance and Investor Rights Agreement contained in this Schedule 13D is qualified in its entirety by reference to the Governance and Investor Rights Agreement attached hereto as Exhibit 6. CNET has entered into an agreement with NBC, a copy of which is attached as Exhibit 8 hereto (the "Voting and Right of First Offer Agreement") under which CNET has agreed to vote its shares of Class A Stock in the same manner as NBC with respect to the following transactions involving the Issuer: (a) change in control transactions, including a merger, business combination and sale of substantially all assets or equity securities of the Issuer; and (b) other material transactions, including any sale of more than 5% of the total assets or equity securities of the Issuer. In addition, NBC has a right of first offer to purchase shares of Class A Stock owned by CNET upon CNET's notice to NBC describing the material terms of the proposed sale or transfer CUSIP _____________ Page 15 of 31 Pages to a third party other than NBC. The description of the Voting and Right of First Offer Agreement contained in this Schedule 13D is qualified in its entirety by reference to the Voting and Right of First Offer Agreement attached hereto as Exhibit 8. Except as set forth in this Schedule 13D, to the best knowledge of the Reporting Persons, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 of this Schedule 13D and between such persons and any person with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any of the securities of the Issuer, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Issuer. ITEM 7. Material to Be Filed as Exhibits. Exhibit 1 Joint Filing Agreement by and among the Reporting Persons. Exhibit 2 Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated July 8, 1999, among the Issuer, NBC, Investments Sub, NMC, Xenon 2, Inc. and Xoom. Exhibit 3 First Amendment to the Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated October 20, 1999, among the Issuer, NBC, Investments Sub, NMC, Xenon 2, Inc. and Xoom. Exhibit 4 $39,477,953 Subordinated Zero Coupon Convertible Debenture due 2006. Exhibit 5 $447,416,845 Subordinated Zero Coupon Convertible Debenture due 2006. Exhibit 6 Governance and Investor Rights Agreement, dated as of November 30, 1999, between the Issuer and NBC. Exhibit 7 Registration Rights Agreement, dated as of November 30, 1999, among the Issuer, CNET, NBC, Investments Sub, Flying Disc Investments Limited Partnership and Chris Kitze. Exhibit 8 Voting and Right of First Offer Agreement, dated as of November 30, 1999, between NBC and CNET.
CUSIP _____________ Page 16 of 31 Pages SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. GENERAL ELECTRIC COMPANY By: /s/ Robert E. Healing -------------------- Name: Robert E. Healing Title: Attorney-in-Fact NATIONAL BROADCASTING COMPANY HOLDING, INC. By: /s/ Mark W. Begor -------------------- Name: Mark W. Begor Title: Vice President NATIONAL BROADCASTING COMPANY, INC. By: /s/ Mark W. Begor -------------------- Name: Mark W. Begor Title: Executive Vice President NBC MULTIMEDIA, INC. By: /s/ Martin J. Yudkovitz -------------------- Name: Martin J. Yudkovitz Title: President CUSIP _____________ Page 17 of 31 Pages GE INVESTMENTS SUBSIDIARY, INC. By: /s/ Robert E. Healing -------------------- Name: Robert E. Healing Title: Vice President Dated: December 10, 1999 CUSIP _____________ Page 18 of 31 Pages SCHEDULE A TO SCHEDULE 13D Filed by National Broadcasting Company, Inc. National Broadcasting Company, Inc. Directors and Executive Officers
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors S.S. Cathcart 222 Wisconsin Avenue Retired Chairman, Illinois Suite 103 Tool Works Lake Forest, IL 60045 Andrea Jung Avon Products, Inc. President and Chief 1345 Avenue of the Americas Operating Officer, Avon New York, NY 10105 Products, Inc. G.G. Michelson Federated Department Stores Former Member of the Board 151 West 34th Street of Directors, Federated New York, NY 10001 Department Stores S. Nunn King & Spalding Partner, King & Spalding 191 Peachtree Street, N.E. Atlanta, GA 30303 J.D. Opie General Electric Company Vice Chairman of the Board 3135 Easton Turnpike and Executive Officer, Fairfield, CT 06431 General Electric Company R.S. Penske Penske Corporation Chairman of the Board and 13400 Outer Drive, West President, Penske Detroit, MI 48239-4001 Corporation F.H.T. Rhodes Cornell University President Emeritus, Cornell 3104 Snee Building University Ithaca, NY 14853 A.C. Sigler Champion International Retired Chairman of the Corporation Board and CEO and former 1 Champion Plaza Director, Champion CUSIP _____________ Page 19 of 31 Pages Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Stamford, CT 06921 International Corporation D.A. Warner III J.P. Morgan & Co., Inc. and Chairman of the Board, Morgan Guaranty Trust Co. President, and Chief 60 Wall Street Executive Officer, J.P. New York, NY 10260 Morgan & Co. Incorporated and Morgan Guaranty Trust Company J.F. Welch, Jr. General Electric Company Chairman of the Board and 3135 Easton Turnpike Chief Executive Officer, Fairfield, CT 06431 General Electric Company Executive Officers John F. Welch Jr. National Broadcasting Chairman Company, Inc. 3135 Easton Turnpike Fairfield, CT 06431 Robert C. Wright National Broadcasting Chief Executive Officer & Company, Inc. President 30 Rockefeller Plaza New York, NY 10112 Garth Ancier National Broadcasting Executive Vice President Company, Inc. 3000 West Alameda Avenue Burbank, CA 91523 Mark W. Begor National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 William Bolster CNBC, Inc. Executive Vice President 2200 Fletcher Avenue Fort Lee, NJ 07024 Richard Cotton National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 Duncan Ebersol National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 John W. Eck National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 CUSIP _____________ Page 20 of 31 Pages Randel A. Falco National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112
CUSIP _____________ Page 21 of 31 Pages
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Andrew Lack National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 Scott Sassa National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 Edward Scanlon National Broadcasting Executive Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112 Pamela Thomas-Graham CNBC.com LLC Executive Vice President 2200 Fletcher Avenue Ft. Lee, NJ 07024 Kassie Canter National Broadcasting Senior Vice President Company, Inc. 30 Rockefeller Plaza New York, NY 10112
Each person listed above is a citizen of the United States of America except Andrea Jung, who is a citizen of Canada. CUSIP _____________ Page 22 of 31 Pages
NBC Multimedia, Inc. Directors and Executive Officers Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors Mark W. Begor National Broadcasting Company, Inc. Executive Vice President, 30 Rockefeller Plaza National Broadcasting New York, NY 10112 Company, Inc Martin J. Yudkovitz National Broadcasting Company, Inc. President, NBC Interactive 30 Rockefeller Plaza Media New York, NY 10112 Executive Officers Martin J. Yudkovitz National Broadcasting Company, Inc. President, NBC Interactive 30 Rockefeller Plaza Media New York, NY 10112 Margaret Murphy National Broadcasting Company, Inc. Vice President, NBC Interactive 30 Rockefeller Plaza Media New York, NY 10112
Each person listed above is a citizen of the United States of America. CUSIP _____________ Page 23 of 31 Pages SCHEDULE B TO SCHEDULE 13D Filed by General Electric Company General Electric Company Directors and Executive Officers
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors J.I. Cash, Jr. Harvard Business School Professor of Business Baker Library 187 Administration-Graduate Soldiers Field School of Business Boston, MA 02163 Administration, Harvard University S.S. Cathcart 222 Wisconsin Avenue Retired Chairman, Illinois Suite 103 Tool Works Lake Forest, IL 60045 D.D. Dammerman General Electric Company Vice Chairman of the Board 3135 Easton Turnpike and Executive Officer, Fairfield, CT 06431 General Electric Company; Chairman and Chief Executive Officer, General Electric Capital Services, Inc. P. Fresco Fiat SpA Chairman of the Board, Fiat via Nizza 250 SpA 10126 Torino, Italy A.M. Fudge Kraft Foods, Inc. Executive Vice President 555 South Broadway Tarrytown, NY 10591 C.X. Gonzalez Kimberly-Clark de Mexico, Chairman of the Board and S.A. de C.V. Chief Executive Officer, Jose Luis Lagrange 103, Kimberly-Clark de Mexico, Tercero Piso S.A. de C.V. Colonia Los Morales Mexico, D.F. 11510, Mexico Andrea Jung Avon Products, Inc. President and Chief 1345 Avenue of the Americas Operating Officer, Avon New York, NY 10105 Products, Inc. CUSIP _____________ Page 24 of 31 Pages Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- K.G. Langone Invemed Associates, Inc. Chairman, President and 375 Park Avenue Chief Executive Officer, New York, NY 10152 Invemed Associates, Inc. G.G. Michelson Federated Department Stores Former Member of the Board 151 West 34th Street of Directors, Federated New York, NY 10001 Department Stores S. Nunn King & Spalding Partner, King & Spalding 191 Peachtree Street, N.E. Atlanta, GA 30303 J.D. Opie General Electric Company Vice Chairman of the Board 3135 Easton Turnpike and Executive Officer, Fairfield, CT 06431 General Electric Company R.S. Penske Penske Corporation Chairman of the Board and 13400 Outer Drive, West President, Penske Detroit, MI 48239-4001 Corporation F.H.T. Rhodes Cornell University President Emeritus, Cornell 3104 Snee Building University Ithaca, NY 14853 A.C. Sigler Champion International Retired Chairman of the Corporation Board and CEO and former 1 Champion Plaza Director, Champion Stamford, CT 06921 International Corporation D.A. Warner III J.P. Morgan & Co., Inc. Chairman of the Board, and Morgan Guaranty President, and Chief Trust Co. Executive Officer, J.P. 60 Wall Street Morgan & Co. Incorporated New York, NY 10260 and Morgan Guaranty Trust Company J.F. Welch, Jr. General Electric Company Chairman of the Board and 3135 Easton Turnpike Chief Executive Officer, Fairfield, CT 06431 General Electric Company Executive Officers J.F. Welch, Jr. General Electric Company Chairman of the Board and 3135 Easton Turnpike Chief Executive Officer CUSIP _____________ Page 25 of 31 Pages Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Fairfield, CT 06431 P.D. Ameen General Electric Company Vice President and 3135 Easton Turnpike Comptroller Fairfield, CT 06431 J.R. Bunt General Electric Company Vice President and Treasurer 3135 Easton Turnpike Fairfield, CT 06431 D.L. Calhoun General Electric Company Senior Vice President - GE Nela Park Lighting Cleveland, OH 44122 W.J. Conaty General Electric Company Senior Vice President - 3135 Easton Turnpike Human Resources Fairfield, CT 06431 D.M. Cote General Electric Company Senior Vice President - GE 3135 Easton Turnpike Appliances Fairfield, CT 06431 D.D. Dammerman General Electric Company Vice Chairman of the Board and Executive Officer, General Electric Company; Chairman and Chief Executive Officer, General Electric Capital Services, Inc. L.S. Edelheit General Electric Company Senior Vice President - P.O. Box 8 Corporate Research and Schenectady, NY 12301 Development B.W. Heineman, Jr. General Electric Company Senior Vice President - 3135 Easton Turnpike General Counsel and Fairfield, CT 06431 Secretary J.R. Immelt General Electric Company Senior Vice President - GE P.O. Box 414 Medical Systems Milwaukee, WI 53201 G.S. Malm General Electric Company Senior Vice President - Asia CUSIP _____________ Page 26 of 31 Pages Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- 3135 Easton Turnpike Fairfield, CT 06431 W.J. McNerney, Jr. General Electric Company Senior Vice President - GE 1 Neumann Way Aircraft Engines Cincinnati, OH 05215 R.L. Nardelli General Electric Company Senior Vice President - GE 1 River Road Power Systems Schenectady, NY 12345 R.W. Nelson General Electric Company Vice President - Corporate 3135 Easton Turnpike Financial Planning and Fairfield, CT 06431 Analysis J.D. Opie General Electric Company Vice Chairman of the Board 3135 Easton Turnpike and Executive Officer Fairfield, CT 06431 G.M. Reiner General Electric Company Senior Vice President - 3135 Easton Turnpike Chief Information Officer Fairfield, CT 06431 J.G. Rice General Electric Company Vice President - GE 2901 East Lake Road Transportation Systems Erie, PA 16531 G.L. Rogers General Electric Company Senior Vice President - GE 1 Plastics Avenue Plastics Pittsfield, MA 01201 K.S. Sherin General Electric Company Senior Vice President - 3135 Easton Turnpike Finance and Chief Financial Fairfield, CT 06431 Officer L.G. Trotter General Electric Company Senior Vice President - GE 41 Woodward Avenue Industrial Systems Plainville, CT 06062
Each person listed above is a citizen of the United States of America except: C.X. Gonzalez, who is a citizen of Mexico; P. Fresco, who is a citizen of Italy; Andrea Jung, who is a citizen of Canada; and G.S. Malm, who is a citizen of Sweden. CUSIP _____________ Page 27 of 31 Pages GE Investments Subsidiary, Inc. Directors and Executive Officers
NAME PRESENT BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION - -------- -------------------------- ------------------------------ Directors Philip D. Ameen General Electric Company Vice President and 3135 Easton Turnpike Comptroller, General Fairfield, CT 06431 Electric Company James R. Bunt General Electric Company Vice President and 3135 Easton Turnpike Treasurer, General Fairfield, CT 06431 Electric Company John M. Samuels General Electric Company Vice President and Senior 3135 Easton Turnpike Counsel, General Electric Fairfield, CT 06431 Company Executive Officers James R. Bunt General Electric Company Vice President and 3135 Easton Turnpike Treasurer, General Fairfield, CT 06431 Electric Company John M. Samuels General Electric Company Vice President and Senior 3135 Easton Turnpike Counsel, General Electric Fairfield, CT 06431 Company Philip D. Ameen General Electric Company Vice President and 3135 Easton Turnpike Comptroller, General Fairfield, CT 06431 Electric Company Robert E. Healing General Electric Company Corporate Counsel, 3135 Easton Turnpike General Electric Company Fairfield, CT 06431 Eliza W. Fraser General Electric Company Associate Corporate 3135 Easton Turnpike Counsel, General Electric Fairfield, CT 06431 Company Mark E. Buchanan General Electric Company Manager, State Tax, 3135 Easton Turnpike General Electric Company Fairfield, CT 06431 Barbara A. Melita General Electric Company Tax Specialist 3135 Easton Turnpike General Electric Company Fairfield, CT 06431 Robert J. Zalucki General Electric Company Tax Counsel and Quality 3135 Easton Turnpike Leader, General Fairfield, CT 06431 Electric Company
CUSIP _____________ Page 28 of 31 Pages SCHEDULE C TO SCHEDULE 13D Filed by National Broadcasting Company Holding, Inc. National Broadcasting Company Holding, Inc. Directors and Executive Officers
Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- Directors S.S. Cathcart 222 Wisconsin Avenue Retired Chairman, Illinois Suite 103 Tool Works Lake Forest, IL 60045 Andrea Jung Avon Products, Inc. President and Chief 1345 Avenue of the Americas Operating Officer, Avon New York, NY 10105 Products, Inc. G.G. Michelson Federated Department Stores Former Member of the Board 151 West 34th Street of Directors, Federated New York, NY 10001 Department Stores S. Nunn King & Spalding Partner, King & Spalding 191 Peachtree Street, N.E. Atlanta, GA 30303 J.D. Opie General Electric Company Vice Chairman of the Board 3135 Easton Turnpike and Executive Officer, Fairfield, CT 06431 General Electric Company R.S. Penske Penske Corporation Chairman of the Board and 13400 Outer Drive, West President, Penske Detroit, MI 48239-4001 Corporation F.H.T. Rhodes Cornell University President Emeritus, Cornell 3104 Snee Building University Ithaca, NY 14853 CUSIP _____________ Page 29 of 31 Pages Name Present Business Address Present Principal Occupation - ---- ------------------------ ---------------------------- A.C. Sigler Champion International Retired Chairman of the Corporation Board and CEO and former 1 Champion Plaza Director, Champion Stamford, CT 06921 International Corporation D.A. Warner III J.P. Morgan & Co., Inc. Chairman of the Board, and Morgan Guaranty President, and Chief Trust Co. Executive Officer, J.P. 60 Wall Street Morgan & Co. Incorporated New York, NY 10260 and Morgan Guaranty Trust Company J.F. Welch, Jr. General Electric Company Chairman of the Board and 3135 Easton Turnpike Chief Executive Officer, Fairfield, CT 06431 General Electric Company Executive Officers Robert C. Wright National Broadcasting Chief Executive Officer and Company, Inc. President 30 Rockefeller Plaza New York, NY 10112 Mark W. Begor National Broadcasting Vice President and Treasurer Company, Inc. 30 Rockefeller Plaza New York, NY 10112
Each person listed above is a citizen of the United States of America except Andrea Jung, who is a citizen of Canada. CUSIP _____________ Page 30 of 31 Pages SCHEDULE D TO SCHEDULE 13D GE CONVICTIONS WITHIN THE PAST FIVE YEARS ----------------------------------------- 1. Her Majesty's Inspectorate of Pollution v. IGE Medical Systems Limited (St. Albans Magistrates Court, St. Albans, Hertsfordshire, England, Case No. 04/00320181) In April 1994, IGE Medical Systems Limited ("IGEMS"), a U.K. subsidiary of GE Medical Systems, discovered the loss of a radioactive barium source at the Radlett, England facility. The lost source, used to calibrate nuclear camera detectors, emits a very low level of radiation. IGEMS immediately reported the loss as required by the U.K. Radioactive Substances Act. An ensuing investigation, conducted in cooperation with government authorities, failed to locate the source. On July 21, 1994, Her Majesty's Inspectorate of Pollution ("HMIP") charged IGEMS with violating the Radioactive Substances Act by failing to comply with a condition of registration. The Act provides that a registrant like IGEMS, which "does not comply with a limitation or condition subject to which (it) is so registered ... shall be guilty of (a criminal) offense." Condition 7 of IGEMS' registration states that it "shall so far as is reasonably practicable prevent ... loss of any registered source." At the beginning of trial on February 24, 1995, IGEMS entered a guilty plea and agreed to pay a fine of GBP 5,000 and assessed costs of GBP 5,754. The prosecutor's presentation focused primarily on the 1991 change in internal IGEMS procedures and, in particular, the source logging procedure. The prosecutor complimented IGEMS' investigation and efforts to locate the source and advised the court that IGEMS had no previous violations of the Radioactive Substances Act. He also told the court that the Radlett plant had been highlighted as an exemplary facility to HMIP inspectors as part of their training. In mitigation, IGEMS emphasized the significant infrastructure and expense undertaken by IGEMS to provide security for radiation sources and the significant effort and expense incurred in attempting to locate the missing source. CUSIP _____________ Page 31 of 31 Pages EXHIBIT INDEX
Exhibit No. - ----------- Exhibit 1 Joint Filing Agreement by and among the Reporting Persons. Exhibit 2 Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated July 8, 1999, among the Issuer, NBC, Investments Sub, NMC, Xenon 2, Inc. and XOOM. Exhibit 3 First Amendment to the Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated October 20, 1999, among the Issuer, NBC, Investments Sub, NMC, Xenon 2, Inc. and XOOM. Exhibit 4 $39,477,953 Subordinated Zero Coupon Convertible Debenture due 2006. Exhibit 5 $447,416,845 Subordinated Zero Coupon Convertible Debenture due 2006. Exhibit 6 Governance and Investor Rights Agreement, dated as of November 30, 1999, among the Issuer and NBC. Exhibit 7 Registration Rights Agreement, dated as of November 30, 1999, among the Issuer, CNET, NBC, Investments Sub, Flying Disc Investments Limited Partnership and Chris Kitze. Exhibit 8 Voting and Right of First Offer Agreement, dated as of November 30, 1999, among NBC and CNET.
EX-1 2 EXHIBIT 1 Exhibit 1 JOINT FILING AGREEMENT We, the signatories of the statement on Schedule 13D to which this Agreement is attached, hereby agree that such statement is, and any amendments thereto filed by any of us will be, filed on behalf of each of us. Dated: December 10, 1999 GENERAL ELECTRIC COMPANY By: /s/ Robert E. Healing -------------------- Name: Robert E. Healing Title: Attorney-in-Fact NATIONAL BROADCASTING COMPANY HOLDING, INC. By: /s/ Mark W. Begor -------------------- Name: Mark W. Begor Title: Vice President NATIONAL BROADCASTING COMPANY, INC. By: /s/ Mark W. Begor -------------------- Name: Mark W. Begor Title: Executive Vice President NBC MULTIMEDIA, INC. By: /s/ Martin J. Yudkovitz -------------------- Name: Martin J. Yudkovitz Title: President GE INVESTMENTS SUBSIDIARY, INC. By: /s/ Robert E. Healing -------------------- Name: Robert E. Healing Title: Vice President EX-2 3 EXHIBIT 2 Exhibit 2 AMENDED AND RESTATED AGREEMENT AND PLAN OF CONTRIBUTION, INVESTMENT AND MERGER among NATIONAL BROADCASTING COMPANY, INC. GE INVESTMENTS SUBSIDIARY, INC. NEON MEDIA CORPORATION XENON 2, INC. and XOOM.COM, INC. Dated as of June 11, 1999 TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS..............................................................................................2 1.1 Definitions.....................................................................................2 ARTICLE II CONTRIBUTIONS AND ISSUANCES..............................................................................9 2.1 Contributions to NBC and NBC Multimedia.........................................................9 2.2 Contributions to NMC; Issuances of NMC Capital Stock...........................................10 2.3 GE Investments Sub Purchase of Videoseeker Assets..............................................10 2.4 Contributions To Xenon 2; Issuances of Xenon 2 Capital Stock...................................10 2.5 Note Issuances.................................................................................11 2.6 Required Consents..............................................................................12 2.7 Tax Refunds....................................................................................12 ARTICLE III THE MERGER..............................................................................................12 3.1 The Merger.....................................................................................12 3.2 Closing........................................................................................12 3.3 Effective Time.................................................................................13 3.4 Effects of the Merger..........................................................................13 3.5 Certificates of Incorporation..................................................................13 3.6 By-Laws........................................................................................13 3.7 Officers and Directors of Surviving Corporation and Xenon 2....................................13 3.8 Effect on Capital Stock........................................................................13 3.9 Exchange Procedures. .........................................................................14 3.10 No Further Ownership Rights in NMC Common Stock. .............................................14 3.11 Further Assurances. ..........................................................................14 3.12 Federal Income Tax Consequences. .............................................................15 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PARTIES...........................................................15 4.1 Representations and Warranties of NBC..........................................................15 4.2 Representations and Warranties with respect to SNAP............................................22 4.3 Representations and Warranties of Xoom and Xenon 2.............................................30 4.4 Representations and Warranties with respect to GE Investments Sub..............................40 4.5 Survival of Representations and Warranties.....................................................41 4.6 No Other Representation or and Warranties......................................................41 ARTICLE V CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME.............................................................41 5.1 Conduct of the Business of Xoom Pending the Closing............................................41 5.2 Conduct of the Business of SNAP Pending the Closing............................................43 5.3 Conduct of the NBC Multimedia Businesses Pending the Closing...................................45 5.4 Access to Information..........................................................................46 5.5 No Solicitation................................................................................47 5.6 Non-Solicitation of Employees..................................................................49 5.7 Amendments to Schedules........................................................................49
i ARTICLE VI OTHER AGREEMENTS........................................................................................49 6.1 Registration Statement; Preparation of Proxy Statement.........................................49 6.2 Stockholder Meeting............................................................................50 6.3 Public Statements..............................................................................51 6.4 Reasonable Commercial Efforts..................................................................51 6.5 Notification of Certain Matters................................................................52 6.6 Xenon 2 Directors..............................................................................52 6.7 Employee Matters...............................................................................53 6.8 Xenon 2 Options. ............................................................................54 6.9 SNAP Indebtedness..............................................................................55 6.10 Organization of CNBC.com.......................................................................55 6.11 Tax Cooperation and Consistent Reporting.......................................................55 6.12 Tax Benefit Payments...........................................................................57 6.13 Xoom Cash......................................................................................58 ARTICLE VII CONDITIONS TO CLOSING...................................................................................59 7.1 Conditions Precedent to Obligations of Each Party..............................................59 7.2 Conditions Precedent to Obligation of NBC......................................................60 7.3 Conditions Precedent to Obligations of Xenon 2.................................................60 ARTICLE VIII INDEMNIFICATION.........................................................................................61 8.1 Indemnification by Xenon 2.....................................................................61 8.2 Indemnification by NBC.........................................................................61 8.3 Claims Procedure...............................................................................61 8.4 Exclusive Remedy...............................................................................62 ARTICLE IX TERMINATION.............................................................................................62 9.1 Termination Events.............................................................................62 9.2 Effect of Termination..........................................................................64 ARTICLE X MISCELLANEOUS AGREEMENTS OF THE PARTIES.................................................................64 10.1 Notices........................................................................................64 10.2 Integration; Amendments........................................................................65 10.3. Waiver.........................................................................................65 10.4. No Assignment; Successors and Assigns..........................................................66 10.5. Expenses.......................................................................................66 10.6. Severability...................................................................................66 10.7 Section Headings; Table of Contents............................................................66 10.8. Third Parties..................................................................................66 10.9 GOVERNING LAW; SUBMISSION TO JURISDICTION......................................................66 10.10 Specific Performance...........................................................................67 10.11 Counterparts...................................................................................67 10.12 Amendment and Restatement......................................................................67
ii EXHIBITS Exhibit A Advertising Agreement Term Sheet Exhibit B Standstill Agreement Exhibit C Voting and Right of First Offer Agreement Exhibit D Governance and Investor Rights Agreement Exhibit E Brand Integration and License Agreement Exhibit F Registration Rights Term Sheet Exhibit G Summary of Principal Terms of Xenon 2 Convertible Note Exhibit H NBC Note- Summary of Principal Terms Exhibit 3.5 Restated Certificate of Incorporation of Xenon 2, Inc. Exhibit 3.6 Bylaws of Xenon 2, Inc. SCHEDULES Schedule 1.1(a) Knowledge Definition Schedule 1.1(b) NBC Multimedia Assets Schedule 1.1(c) NBC Multimedia Liabilities Schedule 1.1(d) Videoseeker Assets Schedule 1.1(e) Videoseeker Liabilities Schedule 2.1 Rights and Obligations of CNBC, Inc. Interests Schedule 3.7 Officers and Directors Schedule 4.1(c) Governmental Approvals; Consents Schedule 4.1(e) Financial Information Schedule 4.1(f) Absence of Certain Changes or Events Schedule 4.1(h) Properties, Contracts, Permits and Other Data Schedule 4.1(i) Legal Proceedings Schedule 4.1(j) Labor Controversies Schedule 4.1(k) Intellectual Property and Technology Schedule 4.1(l) Government Licenses, Permits, Etc. Schedule 4.1(n) Environmental Matters Schedule 4.1(o) Employee Benefit Matters Schedule 4.1(q) Entire Business Schedule 4.2(c) Governmental Approvals; Consents Schedule 4.2(e) Equity Interests Schedule 4.2(f) Financial Information; Liabilities Schedule 4.2(g) Absence of Certain Changes or Events Schedule 4.2(h) Title to Properties; Liens Schedule 4.2(i) Properties, Contracts, Permits Schedule 4.2(j) Legal Proceedings
iii Schedule 4.2(k) Labor Controversies Schedule 4.2(l) Intellectual Property and Technology Schedule 4.2(m) Government Licenses, Permits Schedule 4.2(o) Environmental Matters Schedule 4.2(p) Employee Benefit Matters Schedule 4.2(r) Tax Matters Schedule 4.2(t) Acceleration of Options Schedule 4.3(c) Governmental Approvals; Consents Schedule 4.3(g) Stock Options Schedule 4.3(h) Obligations with Respect to Capital Stock Schedule 4.3(j) Absence of Certain Changes or Events Schedule 4.3(k) Properties, Contracts, Permits and Other Data Schedule 4.3(l) Legal Proceedings Schedule 4.3(m) Labor Controversies Schedule 4.3(n) Intellectual Property Schedule 4.3(o) Government Licenses, Permits, Etc. Schedule 4.3(q) Employee Benefits Matters Schedule 4.3(q)(iii) Exception to Employee Benefit Plan Compliance Schedule 4.3(q)(vii) Benefit Payments Required Schedule 4.3(s) Tax Matters Schedule 4.3(u) Year 2000 Compliance Schedule 5.1 Conduct of the Business of Xoom Pending the Closing Schedule 5.2 Conduct of the Business of SNAP Pending the Closing Schedule 6.4 Required Consents Schedule 6.7(a) Transferred Employees Schedule 6.9 SNAP Indebtedness Schedule 6.10 Organization of CNBC iv AMENDED AND RESTATED AGREEMENT AND PLAN OF CONTRIBUTION, INVESTMENT AND MERGER This Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated as of June 11, 1999 (hereinafter, the "AGREEMENT"), among National Broadcasting Company, Inc., a Delaware corporation ("NBC"), GE Investments Subsidiary, Inc., a Delaware corporation ("GE INVESTMENTS SUB"), Neon Media Corporation, a Delaware corporation ("NMC"), Xenon 2, Inc., a Delaware corporation ("XENON 2") and XOOM.com, Inc., a Delaware corporation ("XOOM"). W I T N E S S E T H: WHEREAS, the parties hereto are party to the Agreement and Plan of Contribution, Investment and Merger, dated as of May 9, 1999 (the "EXISTING MERGER AGREEMENT"); WHEREAS, the parties hereto have agreed to amend and restate the Existing Merger Agreement as set forth in this Agreement, all on the terms and conditions hereinafter set forth so that, as amended and restated, the Existing Merger Agreement reads in its entirety as provided in this Agreement; WHEREAS, NBC owns all of the outstanding capital stock of NBC Multimedia, Inc., a Delaware corporation ("NBC MULTIMEDIA"); WHEREAS, NBC Multimedia formed NMC for the purpose of effecting the transactions contemplated by this Agreement and all of its outstanding capital stock is owned by NBC Multimedia; WHEREAS, Xoom, Xenon 2, Xenon 3, Inc., a Delaware corporation ("XENON 3"), SNAP! LLC, a Delaware limited liability company ("SNAP") and CNET, Inc., a Delaware corporation ("CNET"), are parties to an Agreement and Plan of Contribution and Merger dated as of May 9, 1999 (the "XENON 2 MERGER AGREEMENT") pursuant to which, among other things, the parties thereto have agreed that (i) Xenon 3 will merge with and into Xoom, with Xoom as the surviving corporation, and each outstanding share of common stock of Xoom, par value $0.0001 per share, will be converted into the right to receive one share of Class A Common Stock of Xenon 2 and (ii) CNET will contribute to Xenon 2 certain assets in exchange for shares of Class A Common Stock of Xenon 2; WHEREAS, Xoom owns all of the outstanding capital stock of Xenon 2, and Xenon 2 owns all of the outstanding stock of Xenon 3; WHEREAS, the closing of the transactions contemplated by the Xenon 2 Merger Agreement is a condition to the closing of the transactions contemplated by this Agreement; 2 WHEREAS, while the closing under the Xenon 2 Merger Agreement and the closing under this Agreement are not contingent on each other, it is intended that both transactions represent a series of steps in the formation of Xenon 2 whereby the rights of all the parties are defined; WHEREAS, the consummation of the transactions contemplated by the Xenon 2 Merger Agreement and this Agreement would combine certain assets of NBC and CNET with the existing business of Xoom in a new holding company structure intended to achieve important business objectives; WHEREAS, the Board of Directors of each of Xoom, Xenon 2 and Xenon 3 believe it is advisable for such parties to enter into this Agreement and to consummate the transactions provided for herein; WHEREAS, concurrently with the execution hereof, in order to induce NBC to enter into this Agreement, NBC, Xoom and certain stockholders of Xoom are entering into a voting agreement providing for certain voting and other restrictions with respect to shares of Xoom common stock owned by such stockholders, all upon the terms and conditions specified therein; and WHEREAS, NBC, GE Investments Sub, NMC, Xoom and Xenon 2 desire to make certain representations, warranties, covenants and other agreements in connection with the transactions contemplated hereby. NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein, and intending to be legally bound, the parties hereby agree as follows: ARTICLE I DEFINITIONS 1.1 DEFINITIONS. (a) Capitalized terms used and not defined in this Agreement shall have the following meanings: "ADVERTISING AGREEMENT" means the advertising agreement between Xenon 2 and NBC to be dated as of the Closing Date having the terms set forth in EXHIBIT A hereto. "AFFILIATE" means with respect to a specified Person, any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the specified Person. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise. 3 "BUSINESS DAY" means a day, other than Saturday or Sunday, on which commercial banks in New York City are open for the general transaction of business. "CLASS A COMMON STOCK" means the Class A common stock, $0.0001 par value per share, of Xenon 2. "CLASS B COMMON STOCK" means the Class B common stock, $0.0001 par value per share, of Xenon 2. "CNBC.COM" means the entity to be formed by NBC or its Subsidiaries pursuant to SECTION 6.10 to conduct business through the CNBC.com universal resource locator. "CNET STANDSTILL AGREEMENT" means a Standstill Agreement between Xenon 2 and CNET to be dated as of the Closing Date substantially in the form of EXHIBIT B hereto. "CNET VOTING AGREEMENT" means a Voting and Right of First Offer Agreement between CNET and NBC to be dated as of the Closing Date substantially in the form of EXHIBIT C hereto. "CODE" means the Internal Revenue Code of 1986, as amended. "CONTRIBUTED ASSETS" means the Xoom Stock, the interests in SNAP and the NBC Multimedia Assets. "ENVIRONMENTAL LAWS" means any and all laws, rules, orders, regulations, statutes, ordinances, guidelines, codes, decrees, or other legally enforceable requirement (including, without limitation, common law) of any foreign government, the United States, or any state, local, municipal or other governmental authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health, or employee health and safety. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended. "FINAL DETERMINATION" means a determination as defined in Section 1313(a) of the Code or any other event which finally and conclusively establishes the amount of any liability for Taxes. "FLYING DISC" means Flying Disc Investments Limited Partnership, a Nevada limited partnership. 4 "GAAP" means generally accepted accounting principles in the United States. "GOVERNANCE AGREEMENT" means the governance agreement between Xenon 2 and NBC to be dated as of the Closing Date substantially in the form set forth in EXHIBIT D hereto. "GOVERNMENTAL AUTHORITY" means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "IMPLEMENTING AGREEMENTS" means, the NBC Note, the Xenon 2 Convertible Note, the Governance Agreement, the Registration Rights Agreement, the License Agreement, the Advertising Agreement, the CNET Voting Agreement and the CNET Standstill Agreement. "INDEPENDENT ACCOUNTANTS" means a nationally recognized firm of independent certified public accountants selected and retained by the mutual agreement of NBC and Xenon 2. "INTELLECTUAL PROPERTY" shall mean any patents, patent registrations, patent applications, trademarks, trademark registrations, trademark applications, tradenames, copyrights, copyright applications, copyright registrations, franchises, universal resource locators, domain names, permits, licenses, processes, formulae, proprietary technology, inventions, trade secrets, know-how, product descriptions and specifications. "KNOWLEDGE OF" or "BEST KNOWLEDGE OF" a party hereto when modifying any representation and warranty shall mean that such party has no actual knowledge that such representation and warranty is not true and correct to the extent provided therein and that (i) such party has made appropriate investigations and inquiries of its officers and responsible employees and (ii) nothing has come to its attention in the course of such investigation and inquiries which would cause such party, in the exercise of due care, to believe that such representation and warranty is not true and correct to the extent provided therein; PROVIDED that each of the parties hereto shall be deemed to have satisfied the foregoing requirements by making appropriate investigations and inquiries of its officers and employees listed on SCHEDULE 1.1(A), and no knowledge of any other director, officer or employee of such party shall be imputed to the persons listed on the Schedule or to such party. "LIABILITY" means, as to any Person, all debts, liabilities and obligations, direct, indirect, absolute or contingent of such Person, whether accrued, vested or otherwise, whether known or unknown and whether or not actually reflected, or required to be reflected, in such Person's balance sheets. "LICENSE AGREEMENT" means the license agreement between NBC Multimedia and NBC to be dated as of May 9, 1999 substantially in the form set forth in EXHIBIT E hereto. 5 "LIEN" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind. "LOSSES AND EXPENSES" means any and all damages, claims, losses, expenses, costs, obligations and Liabilities, including, without limiting the generality of the foregoing, Liabilities for all reasonable attorneys' fees and expenses (including attorney and expert fees and expenses incurred to enforce the terms of this Agreement), PROVIDED, HOWEVER, that "Losses and Expenses" shall not include any lost profits or other incidental, consequential or punitive damages. "MATERIAL ADVERSE EFFECT" means, for any party, a material adverse effect on (i) the assets, liabilities, business, results of operations or financial condition of (A) Xoom, Xenon 2 and their respective Subsidiaries, taken as a whole, in the case of Xoom or (B) the NBC Multimedia Businesses and SNAP, taken as a whole, in the case of NBC; or (ii) the ability of such party to perform its obligations hereunder, under the Voting Agreement, the Option Agreement or under the Implementing Agreements to which it is a party. Notwithstanding the foregoing, the occurrence of one of the following events, without the occurrence of any other events, shall not be deemed by itself to constitute a Material Adverse Effect: (i) a change in the market price or trading volume of the outstanding equity securities of a party that is publicly traded, (ii) the failure of a party to meet earnings estimates of equity analysts as reflected in the First Call consensus estimates for any period (or for which earnings are released) on or after May 9, 1999 and prior to the Effective Time or (iii) adverse conditions affecting the U.S. economy as a whole or affecting the multi-media industry (including internet-related businesses) as a whole (PROVIDED that in each case such changes do not affect such party in a disproportionate manner). "MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum (including, without limitation, crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other substances of any kind, whether or not any such substance is defined as hazardous or toxic under any Environmental Law, that is regulated pursuant to or could give rise to liability under any Environmental Law. "MEMBER OF THE CONTROLLED GROUP" means each trade or business, whether or not incorporated, which would be treated as a single employer with the named trade or business under Section 4001 of ERISA or Section 414(b), (c), (m) or (o) of the Code. "NASDAQ" means the Nasdaq National Market. "NBC.COM" means the NBC.com universal resource locator and the business conducted through it. "NBC-IN" means the NBC-IN.com universal resource locator and the business conducted through it. 6 "NBC MULTIMEDIA ASSETS" means the assets, properties and other rights of NBC and NBC Multimedia listed on SCHEDULE 1.1(B) which are to be contributed to NMC on the Closing Date. "NBC MULTIMEDIA BUSINESSES" means, collectively, NBC.com, Videoseeker and NBC- IN. "NBC MULTIMEDIA LIABILITIES" means the liabilities of NBC Multimedia listed on SCHEDULE 1.1(C) which are to be assumed by NMC on the Closing Date. "NBC NOTE" means the $340,000,000 note issued by NBC to GE Investments Sub to be transferred to Xenon 2 on the Closing Date. "OPTION AGREEMENT" means the Stock Option Agreement, dated as of May 9,1999, between NBC and Xoom. "OTHER PROPERTY OR MONEY" means other property or money within the meaning of Section 351(b) of the Code. "PERMITTED LIENS" means (i) Liens for Taxes that (x) are not yet due or delinquent or (y) are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (ii) statutory Liens or landlords', carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's or other like Liens arising in the ordinary course of business with respect to amounts not yet overdue for a period of 45 days or amounts being contested in good faith by appropriate proceedings if a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor; (iii) Liens incurred or deposits made in connection with workers' compensation, unemployment insurance and other types of social security or similar benefits; (iv) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of like nature; (v) easements, rights-of-way, restrictions and other similar charges or encumbrances on real property interests which, individually or in the aggregate, do not materially interfere with the ordinary conduct of the relevant entity or business, taken as a whole or the use of any such real property for its current uses; (vi) leases or subleases granted to others which do not materially interfere with the ordinary conduct of the relevant entity or business, taken as a whole; (vii) with respect to real property, title defects or irregularities that do not in the aggregate materially impair the use of the property; (viii) any other Liens imposed by operation of law that do not, individually or in the aggregate, have a Material Adverse Effect on the relevant entity or business, taken as a whole; and (ix) as to any real property leases with respect to which the relevant entity is a lessee, any Lien affecting the interest of the landlord thereunder. "PERSON" means any individual, corporation, partnership, joint venture, trust, incorporated organization, limited liability company, other form of business or legal entity or Governmental Authority. 7 "POST-CLOSING TAX PERIOD" means any Tax period (or portion thereof) ending after the Closing Date. "PRE-CLOSING TAX PERIOD" means any Tax period (or portion thereof) ending on or before the Closing Date. "REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement among Xenon 2, NBC, CNET and Flying Disc to be dated as of the Closing Date having the terms set forth in EXHIBIT F hereto. "SEC" means the Securities and Exchange Commission. "SECURITIES ACT" means the Securities Act of 1933, as amended. "SNAP" means SNAP! LLC, a Delaware limited liability company. "SNAP LLC AGREEMENT" means the limited liability agreement of SNAP, as amended from time to time. "SNAP UNITS" means the units representing limited liability company interests under the SNAP LLC Agreement. "SUBSIDIARY" or "SUBSIDIARIES" of any Person means any corporation, partnership, limited liability company, joint venture or other legal entity of which such Person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity and any partnership of which such Person serves as general partner. "TAX AUTHORITY" shall mean any Governmental Authority having jurisdiction over Taxes. "TAXES" shall mean all federal, state, local and foreign taxes, fees, charges and other assessments of a similar nature, whether imposed directly or through withholding, including, without limitation, any net income, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, profits, license, payroll, employment, excise, severance, stamp, capital stock, occupation, property, environmental or windfall tax, premium, custom, duty or other tax, together with any interest, additions to tax, or penalties applicable thereto. "TAX RETURNS" shall mean all federal, state, local and foreign tax returns, declarations, statements, reports, schedules, forms and information returns and any amended tax returns relating to Taxes. 8 "VIDEOSEEKER" means the Videoseeker.com universal resource locator and the business conducted through it. "VIDEOSEEKER ASSETS" means the assets, properties and other rights of NBC and NBC Multimedia listed on SCHEDULE 1.1(D) which are to be purchased by Xenon 2 from GE Investments Sub on the Closing Date. "VIDEOSEEKER LIABILITIES" means the liabilities of NBC Multimedia listed on SCHEDULE 1.1(E). "VOTING AGREEMENT" means the Voting Agreement, dated as of May 9, 1999, among Xoom, NBC, CNET, Chris Kitze and Flying Disc. "XOOM PREFERRED STOCK" means shares of preferred stock, par value $.0001 per share, of Xoom. "XOOM STOCK" means shares of common stock, par value $.0001 per share, of Xoom. "XENON 2 CONVERTIBLE NOTE" means the $486,894,758 Zero Coupon Convertible Debenture due 2006 issued by Xenon 2 to GE Investments Sub on the Closing Date having the terms set forth in EXHIBIT G hereto. "XENON 2 MERGER AGREEMENT" means the Agreement and Plan of Contribution and Merger, dated as of May 9, 1999, among Xoom, Xenon 2, Xenon 3, SNAP and CNET. Term Section ---- ------- Certificate of Merger 3.3 Claim Notice 8.3 Class A Common Stock 1.1 Class B Common Stock 1.1 Closing 3.2 Closing Date 3.2 Effective Time 3.3 Financial Information 4.1(e) Form S-4 6.1 Indemnified Party 6.6(d) Intellectual Property 1.1 Material Transaction Proposal 5.5(c) Merger 3.1
9
Term Section ---- ------- Merger Consideration 3.8 NBC Multimedia Business Intellectual Property 4.1(k) NBC Plans 6.7(b)(i) Nominees 6.6 Non-Plan Option 6.8 Notice Period 8.3 Option Plan 6.8 Proxy Statement 6.1 Required Consents 6.4 SEC Documents 4.3(h)(i) SNAP Balance Sheet 4.2(f) SNAP Budget 4.2(i) SNAP Intellectual Property 4.2(l) SNAP Plans 4.2(p) Stockholder Approvals 5.5 Stockholder Meeting 6.2 Surviving Corporation 3.1 Takeover Proposal 5.5(c) Vacation Policy 6.7(b)(v) Xenon 2 Stockholder Approval 4.3(b) Xoom Budget 4.3(k) Xoom ESPP 4.3(g) Xoom Intellectual Property 4.3(n) Xoom Options 6.8 Xoom Stockholder Approval 5.5
ARTICLE II CONTRIBUTIONS AND ISSUANCES II.1 CONTRIBUTIONS TO NBC AND NBC MULTIMEDIA. (a) Subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing and immediately prior to the Effective Time (as defined in SECTION 3.3), (i) NBC shall contribute to NBC Multimedia, and NBC Multimedia shall accept, a 10% equity interest in CNBC.com, which interest shall be subject to the rights and obligations set forth on SCHEDULE 2.1 and (ii) NBC Multimedia shall dividend to NBC, and NBC shall accept and assume, all the Videoseeker Assets owned by NBC Multimedia and all the Videoseeker Liabilities. (b) In connection with the transactions described in SECTION 2.1(A), NBC shall execute, and shall cause NBC Multimedia to execute all contribution, transfer, assumption and 10 other agreements which are reasonably necessary to effect the transactions described therein. The CNBC.com interest shall be transferred free and clear of all Liens, except those set forth on Schedule 2.1(a). The Videoseeker Assets shall be transferred free and clear of all Liens, except those set forth on Schedule 1.1(e). II.2 CONTRIBUTIONS TO NMC; ISSUANCES OF NMC CAPITAL STOCK. (a) Subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing and immediately prior to the Effective Time, NBC shall, or shall cause NBC Multimedia, to assign and contribute to NMC, and NMC shall accept, all of NBC's and NBC Multimedia's right, title and interest in the NBC Multimedia Assets, and NBC and NBC Multimedia shall assign and contribute to NMC, and NMC shall assume, all of the NBC Multimedia Liabilities. (b) In connection with the transactions described in SECTION 2.2(A), NBC, NBC Multimedia, and NMC shall execute all contribution, transfer, assumption and other agreements which counsel for NBC and Xoom determine are reasonably necessary to effect the transactions described therein. All of the assets transferred pursuant to SECTION 2.2(A) shall be transferred free and clear of all Liens (other than any Liens imposed by or on behalf of Xenon 2). (c) In exchange for the assignments and contributions set forth in SECTION 2.2(A), at the Closing and concurrently therewith, NMC shall issue 12,173,111 shares of its common stock, par value $.0001 per share, which until the Effective Time shall represent all of the outstanding capital stock of NMC, to NBC Multimedia. II.3 GE INVESTMENTS SUB PURCHASE OF VIDEOSEEKER ASSETS. (a) Subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing and immediately prior to the Effective Time, GE Investments Sub will purchase and NBC will sell, assign, transfer, convey and deliver the Videoseeker Assets, free and clear of all Liens except those set forth on Schedule 1.1(e), in consideration for a reduction in the amount of indebtedness of NBC owing to GE Investments Sub. (b) In connection with the transactions described in SECTION 2.3(A), GE Investments Sub and NBC shall execute all bills of sale and other agreements which are reasonably necessary to affect the transactions described therein. II.4 CONTRIBUTIONS TO XENON 2; ISSUANCES OF XENON 2 CAPITAL STOCK. (a) Subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing and immediately after the Effective Time, NBC shall cause NBC Multimedia to transfer to Xenon 2, and Xenon 2 shall accept, all of the right, title and interest to the SNAP Units held by NBC Multimedia, including NBC Multimedia's rights pursuant to SECTION 7.3 and SECTION 7.4 of the SNAP LLC Agreement to increase the number of SNAP Units held by NBC Multimedia as provided in such agreement. (b) In connection with the transactions described in SECTION 2.4(A), NBC, NBC Multimedia and Xenon 2 shall execute all contribution, transfer, assumption and other 11 agreements which counsel for NBC and Xoom determine are reasonably necessary to effect the transactions described therein. All of the assets transferred pursuant to SECTION 2.4(A) shall be transferred free and clear of all Liens (other than any Liens imposed by or on behalf of Xenon 2). (c) In exchange for the assignment and contribution of the SNAP Units set forth in SECTION 2.4(A), at the Closing and concurrently therewith, Xenon 2 shall issue 11,417,569 shares of Class B Common Stock to NBC Multimedia; PROVIDED, that in no event shall NBC and its Affiliates be issued shares of Common Stock of Xenon 2 that would result in their aggregate holding of such shares being equal to or greater than 50% of the outstanding shares of Common Stock of Xenon 2 after giving effect to all of the issuances of such Common Stock on the Closing Date. (d) Upon the original issuance of the shares of Class B Common Stock by Xenon 2 to NBC Multimedia pursuant to SECTION 2.2 and SECTION 2.4(C), and until such time as the same is no longer required hereunder or under the applicable requirements of the Securities Act or applicable state securities laws, any certificate issued representing any such Class B Common Stock shall bear the following legend: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS (A) THEY ARE SO REGISTERED OR (B) AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND THE ISSUER IS FURNISHED WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THAT EFFECT. IN ADDITION, SUCH SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF A GOVERNANCE AND INVESTOR RIGHTS AGREEMENT, DATED AS OF ______, 1999, AS AMENDED FROM TIME TO TIME, AMONG NATIONAL BROADCASTING COMPANY, INC. AND THE ISSUER COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER." II.5 NOTE ISSUANCES; PURCHASE OF VIDEOSEEKER ASSETS BY XENON 2. (a) Subject to the satisfaction or waiver of the conditions set forth in this Agreement, after the Effective Time and the consummation of all of the transactions contemplated by SECTIONS 2.1, 2.2, 2.3 and 2.4 of this Agreement, GE Investments Sub shall purchase the Xenon 2 Convertible Note from Xenon 2 in exchange for an assignment of the NBC Note from GE Investments Sub to Xenon 2 and the assignment and sale by GE Investments Sub of the Videoseeker Assets to Xenon 2, free and clear of all Liens, except those set forth on Schedule 1.1(e). (b) In connection with the transactions described in SECTION 2.5(A), NBC, GE Investments Sub and Xenon 2 shall execute all deeds, bills of sale, assignments and purchase, transfer and other agreements which counsel for NBC and Xoom determine are reasonably 12 necessary to effect the transactions described therein. Upon surrender of the NBC Note to NBC, NBC shall issue a new note payable to Xenon 2 having the terms set forth in EXHIBIT H. II.6 REQUIRED CONSENTS. Notwithstanding anything to the contrary contained in this Agreement, to the extent that the sale, conveyance, transfer, assignment or delivery or attempted sale, conveyance, transfer, assignment or delivery to NMC or Xenon 2 of any of the assets (including any assumed contract, license or other agreement) is prohibited by applicable law or would require any governmental or third-party authorization, approval, consent or waiver and such authorization, approval, consent or waiver shall not have been obtained prior to the Closing, this Agreement shall not constitute a sale, conveyance, transfer, assignment or delivery, or an attempted sale, conveyance, transfer, assignment or delivery thereof if any of the foregoing would constitute a breach of applicable law or the rights of any third party. Following the Closing, the parties shall use their reasonable commercial efforts, and shall cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers; PROVIDED, HOWEVER, that neither NBC, Xenon 2 nor any of their respective Affiliates shall be required to pay any consideration therefor, other than filing, recordation or similar fees payable to any governmental authority, which fees shall be paid by Xenon 2. Pending or in the absence of such authorization, approval, consent or waiver, the parties shall use their reasonable commercial efforts to enter into reasonable and lawful arrangements designed to provide to Xenon 2 the benefits and liabilities of use of such assets from and after the Effective Time. II.7 TAX REFUNDS. Notwithstanding anything herein to the contrary, Xenon 2 shall be entitled to all refunds of Taxes with respect to the activities, properties or employees of NMC or SNAP attributable to the period after the Closing Date. ARTICLE III THE MERGER III.1 THE MERGER. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the "DGCL"), NMC shall be merged (the "MERGER") with and into Xenon 2 at the Effective Time. Following the Merger, the separate corporate existence of NMC shall cease and Xenon 2 shall continue as the surviving corporation (the "SURVIVING CORPORATION"). III.2 CLOSING. Subject to the satisfaction or waiver (subject to applicable law) of the conditions set forth in ARTICLE VII, the closing of the Merger and the transactions contemplated by this Agreement (the "CLOSING") will take place on the second Business Day after all the conditions to Closing (other than conditions that, by their terms, cannot be satisfied until the Closing Date) set forth in ARTICLE VII shall have been satisfied or waived, unless this Agreement has been theretofore terminated pursuant to its terms, unless another time or date is agreed to in writing by the parties hereto (the actual time and date of the Closing being referred to herein as the "CLOSING DATE"). The Closing shall be held at the offices of Simpson Thacher & Bartlett, 425 13 Lexington Avenue, New York, New York, 10017, unless another place is agreed to in writing by the parties hereto. III.3 EFFECTIVE TIME. As soon as practicable following the satisfaction of the conditions set forth in ARTICLE VII, the parties shall (i) file a certificate of merger (the "CERTIFICATE OF MERGER") executed in accordance with the relevant provisions of the DGCL and (ii) make all other filings or recordings required under the DGCL. The Merger shall become effective at such time as shall be specified in the Certificate of Merger (the date and time the Merger becomes effective being the "EFFECTIVE TIME"). III.4 EFFECTS OF THE MERGER. At and after the Effective Time, the Merger will have the effects set forth in the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the property, rights, privileges, powers and franchises of NMC and Xenon 2 shall be vested in the Surviving Corporation, and all debts, liabilities and duties of NMC and Xenon 2 shall become the debts, liabilities and duties of the Surviving Corporation. III.5 CERTIFICATES OF INCORPORATION. Xoom shall cause the certificate of incorporation of Xenon 2 to be amended and restated immediately prior to the Effective Time to change the name of Xenon 2 to "NBC Internet, Inc." and so as to otherwise read in its entirety as set forth in EXHIBIT 3.5, with such changes therein as NBC and Xenon 2 may agree upon prior to the Effective Time, and such amended and restated certificate of incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law. III.6 BY-LAWS. Xoom shall cause the by-laws of Xenon 2 to be amended and restated effective prior to the Effective Time so as to read in their entirety as set forth in EXHIBIT 3.6, with such changes therein as NBC and Xenon 2 may agree upon prior to the Effective Time, and such amended and restated by-laws shall be the by-laws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law. III.7 OFFICERS AND DIRECTORS OF SURVIVING CORPORATION AND XENON 2. The officers and directors of the Surviving Corporation shall be as provided in SCHEDULE 3.7, which individuals will serve as officers and directors of the Surviving Corporation until the earlier of their resignation or removal or otherwise ceasing to be an officer or director or until their respective successors are duly elected and qualified. III.8 EFFECT ON CAPITAL STOCK. (a) At the Effective Time by virtue of the Merger and without any action on the part of the holder thereof, each share of common stock, par value $0.0001, of NMC (the "NMC COMMON STOCK") issued and outstanding immediately prior to the Effective Time (other than shares of NMC Common Stock held by NMC, all of which shall be canceled as provided in SECTION 3.8(C)) shall be converted into one share of Class B common stock, par value $0.0001 per share, of the Surviving Corporation (the "MERGER CONSIDERATION") 14 and all shares of common stock of the Surviving Corporation issued and outstanding at the Effective Time shall remain outstanding after the Merger. (b) As a result of the Merger and without any action on the part of the holders thereof, at the Effective Time, all shares of NMC Common Stock shall be canceled and shall cease to exist, and each holder of a certificate which immediately prior to the Effective Time represented any such shares of NMC Common Stock (a "CERTIFICATE") shall thereafter cease to have any rights with respect to such shares of NMC Common Stock, except as provided herein or by law. (c) Each share of NMC Common Stock held by NMC at the Effective Time shall, by virtue of the Merger, cease to be outstanding and shall be canceled and no stock of Xenon 2 or other consideration shall be delivered in exchange therefor. (d) Upon the original issuance of the shares of Class B Common Stock by Xenon 2 in connection with the Merger, and until such time as the same is no longer required hereunder or under the applicable requirements of the Securities Act or applicable state securities laws, any certificate issued representing any such Class B Common Stock shall bear the following legend: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS (A) THEY ARE SO REGISTERED OR (B) AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND THE ISSUER IS FURNISHED WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO THAT EFFECT. IN ADDITION, SUCH SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF A GOVERNANCE AND INVESTOR RIGHTS AGREEMENT, DATED AS OF ________, 1999, AS AMENDED FROM TIME TO TIME AMONG NATIONAL BROADCASTING COMPANY, INC. AND THE ISSUER COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER." III.9 EXCHANGE PROCEDURES. As soon as reasonably practicable after the Effective Time, NBC shall cause NBC Multimedia to deliver its Certificate to Xenon 2 and NBC Multimedia shall be entitled to receive in exchange a certificate representing, in the aggregate, the number of shares into which the NMC Common Stock was converted pursuant to SECTION 3.8(A). III.10 NO FURTHER OWNERSHIP RIGHTS IN NMC COMMON STOCK. All shares of Class B Common Stock issued upon conversion of NMC Common Stock in accordance with the terms of this ARTICLE III shall be deemed to have been issued in full satisfaction of all rights pertaining to the shares of NMC Common Stock formerly represented thereby. 15 III.11 FURTHER ASSURANCES. At and after the Effective Time, the officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of NMC or Xenon 2, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of NMC or Xenon 2, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger. III.12 FEDERAL INCOME TAX CONSEQUENCES. For federal income tax purposes, it is intended that the transfers described in SECTION 2.1, SECTION 2.2 and SECTION 2.3 and the Merger qualify as a contribution to Xenon 2 qualifying under Section 351 of the Code. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PARTIES IV.1 REPRESENTATIONS AND WARRANTIES OF NBC. NBC represents and warrants to Xoom and Xenon 2 as follows, PROVIDED that none of the representations or warranties contained in this SECTION 4.1 are made with respect to SNAP, its assets, Liabilities or the business conducted thereby except paragraphs (a), (b) and (c) and the second sentence of paragraph (g) to the extent related to the ownership or transfer of the SNAP Units: (a) DUE ORGANIZATION, POWER AND GOOD STANDING. NBC, NMC and each of Neon's Subsidiaries that is a party to an Implementing Agreement is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. NBC, NMC and each of Neon's Subsidiaries that is a party to an Implementing Agreement has all requisite power and authority to enter into this Agreement and the Implementing Agreements to which it is a party and to perform its obligations hereunder and thereunder. NBC, NMC and each of Neon's Subsidiaries that is a party to an Implementing Agreement is qualified to do business and is in good standing in all jurisdictions in which it conducts its business, except where the failure to do so would not, individually or in the aggregate, taken as a whole, have a Material Adverse Effect. (b) AUTHORIZATION AND VALIDITY OF AGREEMENTS. The execution, delivery and performance by NBC and its Subsidiaries of the Existing Merger Agreement, this Agreement and the Implementing Agreements to which it or its Subsidiaries is a party and the consummation by NBC and its Subsidiaries of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or other governance action (including any required approval from NBC Parent) on the part of NBC and its Subsidiaries. Each of the Existing Merger Agreement, this Agreement, the Option Agreement and the Voting Agreement has been, and each of the Implementing Agreements to which NBC or any of its Subsidiaries is a party will on the Closing Date be, duly executed and delivered by NBC and its Subsidiaries and constitutes or, in the case of the Implementing Agreements, upon execution thereof will constitute, a valid 16 and legally binding obligation of NBC and its Subsidiaries, enforceable against each in accordance with its terms. (c) GOVERNMENTAL APPROVALS; CONSENTS. Except as described in SCHEDULE 4.1(C), the execution, delivery and performance of this Agreement, the Option Agreement and the Implementing Agreements by NBC and its Subsidiaries and the consummation by such Persons of the transactions contemplated hereby and thereby will not (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws or other governing documents of NBC or its Subsidiaries; (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority; (iii) require the consent or approval of any Person (other than a Governmental Authority or any approvals required under SECTION 4.1(B)) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the NBC Multimedia Assets or the Videoseeker Assets under, any of the terms, conditions or provisions of any contract or license to which NBC or any of its Subsidiaries is a party or by which it or its assets or property are bound; or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to NBC or any of its Subsidiaries; other than any consents, approvals, authorizations and permits the failure of which to obtain and any violations, conflicts, breaches defaults and other matters set forth pursuant to clauses (ii), (iii) and (iv) above which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (d) CERTAIN FEES. Neither NBC or any of its Subsidiaries nor the officers, directors or employees, thereof have employed any broker or finder or incurred any other Liability for any brokerage fees, commissions or finders' fees in connection with the transactions contemplated hereby; except that NBC has employed BT Alex. Brown Incorporated whose fees and expenses will be paid in accordance with SECTION 10.5 if the transactions contemplated by this Agreement are consummated and will otherwise be paid by NBC. (e) FINANCIAL INFORMATION, LIABILITIES. NBC has provided Xenon 2 with certain historical financial information relating to the NBC Multimedia Businesses set forth on SCHEDULE 4.1(E) hereto (the "FINANCIAL INFORMATION"). The Financial Information has been prepared in accordance with the accounting principles and procedures set forth on SCHEDULE 4.1(E) and is true and correct in all material respects. All of the NBC Multimedia Liabilities and Videoseeker Liabilities primarily relate to the NBC Multimedia Businesses. (f) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed on SCHEDULE 4.1(F), since December 31, 1998, NBC and its Subsidiaries have conducted the NBC Multimedia Businesses in all material respects only in the ordinary course, consistent with past practice and there has not been (i) any material adverse change in the assets, liabilities, business, results of operations or financial condition of the NBC Multimedia Businesses or (ii) except in the ordinary course of business consistent with past practice and except for such matters that would not reasonably be expected to have a Material Adverse Effect, any damage, destruction, loss, 17 conversion, condemnation or taking by eminent domain related to any material NBC Multimedia Asset. In addition, except as disclosed on SCHEDULE 4.1(F), from December 31, 1998 to May 9, 1999, neither NBC nor any of its Subsidiaries has (A) acquired or disposed of any material assets of an NBC Multimedia Business or entered into any agreement or other arrangement for any such acquisition or disposition or (B) relinquished, forgiven or canceled any material debts or claims with respect to an NBC Multimedia Business. (g) TITLE TO PROPERTIES; ABSENCE OF LIENS. NBC or its Subsidiaries have, and at the Closing, NMC will acquire, good title to (or, in the case of real estate or equipment leases, a valid lease to) all properties, assets and other rights included in the NBC Multimedia Assets, free and clear of all Liens except for Permitted Liens and Liens described on Schedule 1.1(c). NBC or its Subsidiaries have, and at the Closing, immediately prior to the Effective Time, GE Investments Sub will acquire, and after the Effective Time Xenon 2 will acquire, good title to (or in the case of real estate or equipment leases, a valid lease to) all properties, assets and other rights included in the Videoseeker Assets, free and clear of all Liens except for Permitted Liens and Liens described on Schedule 1.1(e). NBC or its Subsidiaries have, and at the Closing, Xenon 2 will acquire, good title to all of the SNAP Units held by NBC and its Subsidiaries, free and clear of all Liens (other than Liens created, imposed or granted by Xenon 2 and as set forth in the SNAP LLC Agreement). Assuming the consummation of the transactions contemplated by the Xenon 2 Merger Agreement in accordance with the terms and conditions thereof, at the Closing, Xenon 2 will acquire good title to all of the SNAP Units. (h) PROPERTIES, CONTRACTS, PERMITS AND OTHER DATA. Except as specified in SCHEDULE 4.1(H) hereto, all rights, licenses, leases, registrations, applications, contracts, commitments and other agreements of NBC and its Subsidiaries with respect to the NBC Multimedia Businesses or by which the NBC Multimedia Assets or Videoseeker Assets are bound are in full force and effect and are valid and enforceable in accordance with their respective terms except for such failures to be in full force and effect and valid and enforceable that would not, individually or in the aggregate, have a Material Adverse Effect. No NBC Multimedia Business is in breach or default in the performance of any obligation thereunder and no event has occurred or has failed to occur whereby any of the other parties thereto have been or will be released therefrom or will be entitled to refuse to perform thereunder, the enforcement of which would have, either individually or in the aggregate, a Material Adverse Effect. (i) LEGAL PROCEEDINGS. Except as described in SCHEDULE 4.1(I), there is no litigation, proceeding or governmental investigation to which NBC or its Subsidiaries is a party pending or, to the best Knowledge of NBC, threatened against it or its Subsidiaries which, either individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect or which, as of May 9, 1999, seeks to restrain or enjoin the consummation of any of the transactions contemplated hereby. NBC and its Subsidiaries are not party to, nor are the NBC Multimedia Assets or Videoseeker Assets subject to, any judgment, writ, decree, injunction or order entered by any court or governmental authority (domestic or foreign) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. 18 (j) LABOR CONTROVERSIES. Except as set forth on SCHEDULE 4.1(J), (i) there have been no labor strikes, slow-downs, work stoppages, lock-outs or other material labor controversies or disputes during the past two years, nor is any such strike, slow-down, work stoppage or other material labor controversy or dispute pending or, to the best Knowledge of NBC, threatened, in each case with respect to the current or former employees of the NBC Multimedia Businesses, (ii) none of the NBC Multimedia Businesses are a party to any labor contract, collective bargaining agreement, contract, letter of understanding or, to Neon's Knowledge, any other agreement, formal or informal, with any labor union or organization, nor are any of the NBC Multimedia Businesses' employees represented by any labor union or organization, and (iii) no NBC Multimedia Business has closed any facility, effectuated any layoffs of employees or implemented any early retirement, separation or window program within the past two years nor has any NBC Multimedia Business planned or announced any such action or program for the future. (k) INTELLECTUAL PROPERTY. NBC or its Subsidiaries own or are licensed or otherwise have the right to use, all Intellectual Property currently used in the NBC Multimedia Businesses (the "NBC MULTIMEDIA BUSINESS INTELLECTUAL PROPERTY"), except as would not, individually or in the aggregate, have a Material Adverse Effect. No NBC Multimedia Business has infringed upon or is in conflict with the Intellectual Property of any third party nor has any NBC Multimedia Business received any written notice of any claim that any NBC Multimedia Business has infringed upon or is in conflict with any Intellectual Property of any third party, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on SCHEDULE 4.1(K), none of the rights of NBC or its Subsidiaries to the NBC Multimedia Business Intellectual Property will be impaired in any way by the transactions provided for herein, and all of the rights of NBC and its Subsidiaries to the NBC Multimedia Business Intellectual Property will be fully enforceable by NMC after the Closing Date to the same extent as such rights would have been enforceable by NBC or its Subsidiaries before the Closing, without the consent or agreement of any other party other than any consents and agreements the failure of which to obtain, individually or in the aggregate, would not have a Material Adverse Effect. There have been no claims (whether private or governmental) against NBC or its Subsidiaries asserting the invalidity or unenforceability of its ownership, license or other right to use any of the registered NBC Multimedia Business Intellectual Property. (l) GOVERNMENT LICENSES, PERMITS, ETC. Except as set forth on SCHEDULE 4.1(L), NBC and its Subsidiaries have all licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Authorities required for the conduct of each NBC Multimedia Business as presently conducted, except where failure would not, individually or in the aggregate, have a Material Adverse Effect. (m) CONDUCT OF BUSINESS IN COMPLIANCE WITH REGULATORY AND CONTRACTUAL REQUIREMENTS. NBC and its Subsidiaries have complied with all applicable laws, ordinances, regulations or orders or other requirements of any Governmental Authority applicable to the NBC Multimedia Businesses, including, without limitation, all rules, regulations and administrative orders relating to anti-competitive practices, discrimination, employment, health 19 and safety, except where the failure to be in such compliance would not have, either individually or in the aggregate, a Material Adverse Effect. (n) ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE 4.1(N) and except for matters that, individually or in the aggregate, would not have a Material Adverse Effect, (i) NBC and its Subsidiaries comply and have complied with all Environmental Laws applicable to the NBC Multimedia Businesses, and possess and comply with and have possessed and complied with all Environmental Permits for each NBC Multimedia Business; (ii) there are and have been no Materials of Environmental Concern, or other conditions, at any property owned or leased by NBC or any of its Subsidiaries and included in the NBC Multimedia Assets or Videoseeker Assets that could give rise to any liability under any Environmental Law or result in costs arising out of any Environmental Law; (iii) no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any Environmental Law to which any NBC or any of its Subsidiaries is, or to the Knowledge of NBC and its Subsidiaries will be, named as a party is pending or, to the Knowledge of NBC, threatened, with respect to any NBC Multimedia Business nor is any NBC Multimedia Business the subject of any investigation in connection with any such proceeding or potential proceeding; (iv) there are no past, present, or anticipated future events, conditions, circumstances, practices, plans, or legal requirements that could be expected to prevent, or materially increase the burden on any NBC Multimedia Business of complying with applicable Environmental Laws or of obtaining, renewing, or complying with all Environmental Permits required under such laws; and (v) NBC has provided to the other parties true and complete copies of all Environmental Reports relating to the NBC Multimedia Businesses in the possession or control of NBC and its Subsidiaries. (o) EMPLOYEE BENEFIT MATTERS. (i) Neither NBC nor any of its Subsidiaries nor any Member of the Controlled Group of which it is a member has (A) engaged in, or is a successor or parent corporation to an entity that has engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or (B) incurred, or could reasonably be expected to incur, any liability under (I) Title IV of ERISA arising in connection with the termination of, or a complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA or (II) Section 4971 of the Code that in either case could become a liability of Xenon 2 or any Subsidiary after the Closing Date. The assets of NBC and all of its Subsidiaries are not now, nor will they after the passage of time be, subject to any lien imposed under Code Section 412(n) by reason of a failure of any of NBC or any Subsidiary or any Member of the Controlled Group of which it is a member to make timely installments or other payments required under Code Section 412. SCHEDULE 6.7(A) sets forth (i) the names and salaries of each employee to whom Xenon 2 shall offer employment pursuant to SECTION 6.7 and (ii) any employment agreements between such employees and NBC or any of its Subsidiaries. (ii) Except as provided on SCHEDULE 4.1(O), no plan exists with respect to the Transferred Employees that could result in the payment to them of any money or other property or accelerate or provide any other rights or benefits to them as a result of the transaction contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of Code Section 280G. 20 (p) ABSENCE OF CERTAIN BUSINESS PRACTICES. No officer, employee or agent of any NBC Multimedia Business, nor any other Person acting on behalf of any NBC Multimedia Business, has, directly or indirectly, within the past five years given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other Person or entity who is or may be in a position to help or hinder any NBC Multimedia Business (or assist such NBC Multimedia Business in connection with any actual or proposed transaction) which (x) subjects any party or any of their respective Subsidiaries, to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (y) if not given in the past, would have had a Material Adverse Effect or (z) if not continued in the future, would have a Material Adverse Effect or which might subject any party or any of their respective Subsidiaries, to suit or penalty in any private or governmental litigation or proceeding. (q) ENTIRE BUSINESS. Except as set forth in SCHEDULE 4.1(Q), the NBC Multimedia Assets and the Videoseeker Assets, including the License Agreement, will enable Xenon 2 to conduct the NBC Multimedia Businesses after the Effective Time in substantially the same manner as they are currently being conducted. (r) TAX MATTERS. (i) NBC and each of its Subsidiaries have timely filed (or have had timely filed on their behalf) or will timely file or cause to be timely filed, all Tax Returns required by applicable law to be filed by any of them prior to the Effective Time with respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com. All such Tax Returns are or will be true, complete and correct in all material respects. There are no outstanding agreements or waivers extending the statutory period of limitation applicable to any of such Tax Returns and neither NBC nor any of its Subsidiaries has requested any extension of time within which to file any material Tax Return with respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com, which return has not yet been filed. There is no pending claim by any authority of a jurisdiction where NBC or any of its Subsidiaries has not filed Tax Returns that NBC or such Subsidiary is or may have been subject to taxation by that jurisdiction with respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com. All Taxes required to be withheld by NBC or its Affiliates with respect to the NBC Multimedia Businesses or CNBC.com or their activities, properties, employees or independent contractors have been withheld and paid over to the appropriate Tax Authority. (ii) NBC and each of its Subsidiaries have paid (or have had paid on their behalf), or where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse), or will establish or cause to be established on or before the Effective Time, an adequate accrual for the payment of, all Taxes due with respect to any period beginning prior to the Effective Time with respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com. No deficiency or adjustment for any Taxes has been threatened, proposed, asserted or assessed against NBC or any of its Subsidiaries with respect to the NBC 21 Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com. There are no liens for Taxes upon the assets of NBC or any of its Subsidiaries, except for liens for current Taxes not yet due, with respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com. (iii) With respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC, neither NBC nor any of its Subsidiaries is required to include in income any adjustment pursuant to Section 481(a) of the Code or any similar applicable provision by reason of a voluntary change in accounting method initiated by NBC or any of its Subsidiaries, and neither the Internal Revenue Service nor any taxing authority has proposed in writing any such adjustment or change in accounting method. Neither NBC nor any of its Subsidiaries has received a tax ruling or entered into a closing agreement with any taxing authority that would have a Material Adverse Effect upon the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC. (iv) With respect to the NBC Multimedia Business, neither NBC nor any of its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement, in each case, that could obligate it to make any payments that would not be deductible pursuant to Section 280G of the Code. (v) None of the NBC Multimedia Businesses or the business of CNBC.com has a "permanent establishment," as defined in any applicable Tax treaty or convention of the United States of America, or fixed place of business in any foreign country. NBC and its Affiliates are in compliance with the terms and conditions of any applicable tax exemptions, agreements or orders of any foreign government to which it may be subject or which it may have claimed with respect to the NBC Multimedia Businesses or the assets, employees or businesses of or to be contributed by NBC or its Affiliates to CNBC.com, and the transactions contemplated by this Agreement will not have any adverse effect on such compliance. (vi) CNBC.com shall initially be treated as a partnership for federal income tax purposes. (s) ACCREDITED INVESTOR. NBC is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act. NBC (i) is acquiring the Class B Common Stock for investment for its own account and not with a view to, or for sale in connection with, any distribution thereof, in violation of the Securities Act; (ii) has had an opportunity to ask questions of the officers and directors of, and has had access to information concerning, Xenon 2 and its Subsidiaries; (iii) has knowledge, sophistication and experience in business and financial matters and risks of such investment; (iv) is able to bear the economic risk of such investment; and (v) is able to afford a complete loss of such investment. (t) YEAR 2000 COMPLIANCE. With respect to the NBC Multimedia Businesses, NBC has adopted and implemented a commercially reasonable plan to provide (x) that the 22 change of the year from 1999 to the year 2000 will not have a Material Adverse Effect and (y) that the impacts of such change on the venders and customers of the NBC Multimedia Businesses will not have a Material Adverse Effect. In Neon's reasonable best estimate, no expenditures materially in excess of currently budgeted items previously disclosed to Xenon 2 will be required in order to cause the information and business systems of the NBC Multimedia Businesses to operate properly following the change of the year 1999 to the year 2000. NBC reasonably expects any material issues related to such change of the year will be resolved in accordance with the timetable set forth in such plan (and in any event on a timely basis in order to be resolved before the year 2000). Between May 9, 1999 and the Effective Time, NBC shall continue to use commercially reasonable efforts to implement such plan. (u) NMC. The authorized capital stock of NMC consists of 100 shares of common stock, par value $0.0001 per share, of which 100 shares have been issued and are outstanding and held by NBC Multimedia as of May 9, 1999. NMC has not conducted any activities other than in connection with its organization, the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby. Prior to the Closing Date, NMC's certificate of incorporation will be amended to provide for an authorized capital stock sufficient to permit NMC to issue shares of its common stock as described in SECTION 2.2(C). (v) NO OTHER LIABILITIES. Other than the NBC Multimedia Liabilities or Videoseeker Liabilities or as set forth on Schedule 1.1(e), there are no Liabilities of NBC or its Subsidiaries or GE Investments Sub that will be transferred or assigned to, or assumed by, NMC in connection with the transactions set forth in SECTION 2 or as to which NMC or Xenon 2 could be liable. IV.2 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO SNAP. NBC represents and warrants to Xenon 2 as follows: (a) DUE ORGANIZATION, POWER AND GOOD STANDING. SNAP is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. SNAP is qualified to do business and is in good standing in all jurisdictions in which it conducts its business, except where the failure to do so would not, individually or in the aggregate, taken as a whole, have a Material Adverse Effect. SNAP has no Subsidiaries other than SNAP International LLC which has not commenced business operations and has no material assets or liabilities. (b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The transfer of the interests in SNAP pursuant hereto have been duly authorized by all necessary action on the part of SNAP. (c) GOVERNMENTAL APPROVALS; CONSENTS. Except as described in SCHEDULE 4.2(C), the execution, delivery and performance by NBC of this Agreement and the Implementing Agreements to which it is a party and the consummation by NBC of the transactions 23 contemplated hereby and thereby will not (i) conflict with or result in a breach of any provision of the SNAP LLC Agreement; (ii) require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority; (iii) require the consent or approval of any Person (other than a Governmental Authority) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets of SNAP under any of the terms, conditions or provisions of any contract or license to which SNAP is a party or by which it or its assets or property are bound; or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to SNAP; other than any consents, approvals, authorizations and permits the failure of which to obtain and any violations, conflicts, breaches defaults and other matters set forth pursuant to clauses (ii), (iii) and (iv) above which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (d) CERTAIN FEES. Neither SNAP nor any of the officers, directors or employees, thereof has employed any broker or finder or incurred any other Liability for any brokerage fees, commissions or finders' fees in connection with the transactions contemplated hereby except that SNAP has employed of BT Alex. Brown Incorporated whose fees and expenses will be paid in accordance with SECTION 10.5 of the transactions contemplated by this Agreement are consummated and otherwise will be paid by SNAP. (e) EQUITY INTERESTS. As of May 9, 1999, the outstanding equity interests in SNAP and the holders thereof are set forth on SCHEDULE 4.2(E) hereto. All outstanding SNAP Units are duly authorized, validly issued, fully paid and non-assessable and are not subject to any preemptive rights except as set forth in the SNAP LLC Agreement and have been issued in compliance with federal and state securities laws. There are no declared or accrued unpaid distributions with respect to any SNAP Units. The limited liability company interests of SNAP International LLC have been duly authorized and issued, and are fully paid and non-assessable and are owned by SNAP free and clear of all Liens. Except for the capital stock of its Subsidiaries, SNAP does not own, directly or indirectly, more than 10% of the capital stock or other ownership interest in any Person and to the extent it owns less than 10% of the capital stock or other ownership interest in any Person, such interests in the aggregate do not constitute a material part of SNAP's assets. Except as set forth on SCHEDULE 4.2(E) hereto or as provided under the terms of this Agreement, no SNAP Units are reserved for issuance, and there are no contracts, agreements, commitments or arrangements obligating SNAP to (i) offer, sell, issue or grant any equity interests in, or any options, warrants or rights of any kind to acquire any equity interests in, or any other securities that are convertible into or exchangeable for any equity interests in SNAP or (ii) to redeem, purchase or acquire, or offer to purchase or acquire, any outstanding equity interests in or any outstanding options, warrants or rights of any kind to acquire any equity interests in, or any other outstanding securities that are convertible into or exchangeable for any equity interests in SNAP. At the Effective Time, after giving effect to the transactions contemplated by the Xenon 2 Merger Agreement and this Agreement, Xenon 2 will 24 own all of the outstanding SNAP Units, other than SNAP Units issued pursuant to the exercise of SNAP Options, free and clear of all Liens. (f) FINANCIAL INFORMATION, LIABILITIES. The unaudited balance sheet for SNAP as at December 31, 1998 (the "SNAP BALANCE SHEET") and the related unaudited income statement for the six months ending December 31, 1998, copies of which are attached hereto as SCHEDULE 4.2(F) present fairly in all material respects the financial condition and results of operations of SNAP as at December 31, 1998 and for the period then ended subject to normal year-end audit adjustments and financial statement footnote disclosure. Except as set forth on SCHEDULE 4.2(G), except as and to the extent disclosed in the SNAP Balance Sheet, and except for liabilities incurred in connection with the transactions contemplated by this Agreement and the Implementing Agreements, there are no liabilities, whether absolute, accrued, contingent or otherwise, of SNAP, that would be required to be reflected on, or reserved against, in such consolidated balance sheet of SNAP, except for (x) liabilities which, singly or in the aggregate, would not have a Material Adverse Effect and (y) liabilities incurred subsequent to the date of such balance sheet by SNAP in the ordinary course of business consistent with past practice. (g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed on SCHEDULE 4.2(G) since December 31, 1998, SNAP has conducted its business in all material respects only in the ordinary course consistent with past practice and there has not been (i) any material adverse change in the assets, liabilities, business, results of operations or financial condition of SNAP, or (ii) except in the ordinary course of business consistent with past practice and except for such matters that would not reasonably be expected to have a Material Adverse Effect, any damage, destruction, loss, conversion, condemnation or taking by eminent domain related to any of its material assets. In addition, except as disclosed on SCHEDULE 4.2(G), from December 31, 1998 to May 9, 1999, SNAP has not (A) acquired or disposed of any material assets or entered into any agreement or other arrangement for any such acquisition or disposition or (B) relinquished, forgiven or canceled any material debts or claims. (h) TITLE TO PROPERTIES; ABSENCE OF LIENS. Except as disclosed on SCHEDULE 4.2(H), SNAP has good title to (or, in the case of real estate or equipment leases, a valid lease to) all of its properties, assets and other rights, free and clear of all Liens except for Permitted Liens and such assets will enable Xenon 2 to conduct the business of SNAP after the Effective Time in substantially the same manner as it is currently being conducted. (i) PROPERTIES, CONTRACTS, PERMITS AND OTHER DATA. Except as specified in SCHEDULE 4.2(I) hereto, all rights, licenses, leases, registrations, applications, contracts, commitments and other agreements of SNAP or by which SNAP is bound are in full force and effect and are valid and enforceable in accordance with their respective terms except for such failures to be in full force and effect and valid and enforceable that would not, individually or in the aggregate, have a Material Adverse Effect. SNAP is not in breach or default in the performance of any obligation thereunder and no event has occurred or has failed to occur whereby any of the other parties thereto have been or will be released therefrom or will be entitled to refuse to perform thereunder, the enforcement of which would have, either 25 individually or in the aggregate, a Material Adverse Effect. SNAP has provided to Xoom complete and accurate copies of SNAP's current annual budget and operating plan (the "SNAP BUDGET"). (j) LEGAL PROCEEDINGS. Except as described in SCHEDULE 4.2(J), there is no litigation, proceeding or governmental investigation to which SNAP is a party pending or, to the best Knowledge of SNAP, threatened against it or its assets which, either individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect or which, as of May 9, 1999, seeks to restrain or enjoin the consummation of any of the transactions contemplated hereby. SNAP is not a party to nor are its assets subject to any judgment, writ, decree, injunction or order entered by any court or governmental authority (domestic or foreign) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. (k) LABOR CONTROVERSIES. Except as set forth on SCHEDULE 4.2(K), (i) there have been no labor strikes, slow-downs, work stoppages, lock-outs or other material labor controversies or disputes during the past two years, nor is any such strike, slow-down, work stoppage or other material labor controversy or dispute pending or, to the best Knowledge of NBC, threatened with respect to the current or former employees of SNAP, (ii) SNAP is not a party to any labor contract, collective bargaining agreement, contract, letter of understanding or, to Neon's Knowledge, any other agreement, formal or informal with any labor union or organization, nor are any of SNAP's employees represented by any labor union or organization and (iii) SNAP has not closed any facility, effectuated any layoffs of employees or implemented any early retirement, separation or window program within the past two years nor planned or announced any such action or program for the future. (l) INTELLECTUAL PROPERTY. SNAP owns or is licensed or otherwise has the right to use, all Intellectual Property currently used in its business (the "SNAP INTELLECTUAL PROPERTY"), except as would not, individually or in the aggregate, have a Material Adverse Effect. SNAP has not infringed upon or is in conflict with the Intellectual Property of any third party nor has SNAP received any written notice of any claim that it has infringed upon or is in conflict with any Intellectual Property of any third party, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on SCHEDULE 4.2(L), none of the rights of SNAP to the SNAP Intellectual Property will be impaired in any way by the transactions provided for herein, and all of the rights of SNAP to the SNAP Intellectual Property will be fully enforceable by SNAP after the Closing Date to the same extent as such rights would have been enforceable by SNAP before the Closing, without the consent or agreement of any other party other than any consents and agreements the failure of which to obtain, individually or in the aggregate, would not have a Material Adverse Effect. There have been no claims (whether private or governmental) against SNAP asserting the invalidity or unenforceability of its ownership, license or other right to use any of the registered SNAP Intellectual Property. (m) GOVERNMENT LICENSES, PERMITS, ETC. Except as set forth on SCHEDULE 4.2(M), SNAP has all licenses, permits, consents, approvals, authorizations, qualifications and 26 orders of Governmental Authorities required for the conduct of its business as presently conducted, except where failure would not, individually or in the aggregate, have a Material Adverse Effect. (n) CONDUCT OF BUSINESS IN COMPLIANCE WITH REGULATORY AND CONTRACTUAL REQUIREMENTS. SNAP has complied with all applicable laws, ordinances, regulations or orders or other requirements of any Governmental Authority including, without limitation, all rules, regulations and administrative orders relating to anti-competitive practices, discrimination, employment, health and safety, except where the failure to be in such compliance would not have, either individually or in the aggregate, a Material Adverse Effect. (o) ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE 4.2(O) and except for matters that, individually or in the aggregate, would not have a Material Adverse Effect, (i) SNAP complies and has complied with all applicable Environmental Laws, and possesses and complies with and has possessed and complied with all Environmental Permits; (ii) there are and have been no Materials of Environmental Concern, or other conditions, at any property owned or leased by SNAP that could give rise to any liability under any Environmental Law or result in costs arising out of any Environmental Law; (iii) no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any Environmental Law to which SNAP is, or to the Knowledge of SNAP will be, named as a party is pending or, to the Knowledge of SNAP, threatened, nor is SNAP the subject of any investigation in connection with any such proceeding or potential proceeding; (iv) there are no past, present, or anticipated future events, conditions, circumstances, practices, plans, or legal requirements that could be expected to prevent, or materially increase the burden on SNAP of complying with applicable Environmental Laws or of obtaining, renewing, or complying with all Environmental Permits required under such laws; and (v) SNAP has provided to the other parties true and complete copies of all Environmental Reports relating to it in the possession or control of such party. (p) EMPLOYEE BENEFIT MATTERS. (i) SCHEDULE 4.2(P) contains a true and complete list of each "employee benefit plan" (within the meaning of section 3(3) of ERISA, and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any employee or former employee of SNAP or its Subsidiaries has any present or future right to benefits and under which SNAP or its Subsidiaries has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "SNAP PLANS". (ii) With respect to each SNAP Plan which is maintained solely by SNAP (the "PORTAL LEVEL PLANS"), SNAP has made available to NBC a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (A) any related trust agreement or other funding instrument; (B) the most recent 27 determination letter, if applicable; (C) any summary plan description and other written communications (or a description of any oral communications) by SNAP or its Subsidiaries to their employees concerning the extent of the benefits provided under a SNAP Plan; and (D) for the most recent two years (I) the Form 5500 and attached schedules and (II) audited financial statements. (iii) (A) Each SNAP Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code and other applicable laws, rules and regulations; (B) each SNAP Plan which is intended to be qualified within the meaning of Code section 401(a) is so qualified and has received a favorable determination letter as to its qualification (or is established using a prototype plan form which has received such a letter), and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification; (C) for each SNAP Plan with respect to which a Form 5500 has been filed, no material change has occurred with respect to the matters covered by the most recent Form since the date thereof; (D) no non-exempt "prohibited transaction" (as such term is defined in ERISA section 406 and Code section 4975) with respect to any SNAP Plan; and (E) no SNAP Plan provides retiree welfare benefits and neither SNAP nor its Subsidiaries have any obligations to provide any retiree welfare benefits except as provided under Section 4980B of the Code. (iv) No SNAP Plan is subject to Title IV of ERISA (including a multiemployer plan within the meaning of Section 3(37) of ERISA), no SNAP Plan is a multiple employer plan; and no SNAP Plan is subject to the minimum funding requirements of ERISA Section 302 or Code Section 412. (v) Neither SNAP nor any of its Subsidiaries nor any member of the Controlled group of which it is a member has (A) engaged in, or is a successor or parent corporation to an entity that has engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or (B) incurred, or could reasonably be expected to incur, any liability under (I) Title IV of ERISA arising in connection with the termination of, or a complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA or (II) Section 4971 of the Code that in either case could become a liability of the SNAP or any Subsidiary or NMC after the Closing Date. The assets of SNAP and all of its Subsidiaries are not now, nor will they after the passage of time be, subject to any lien imposed under Code Section 412(n) by reason of a failure of any of the SNAP or any Subsidiary or any member of the Controlled Group of which it is a member to make timely installments or other payments required under Code Section 412. (vi) With respect to any SNAP Plan, (A) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of SNAP or its Subsidiaries, threatened and (B) no facts or circumstances exist that could reasonably be expected to give rise to any such actions, suits or claims. (vii) Except as provided on SCHEDULE 4.2(P), no SNAP Plan exists that could result in the payment to any present or former employee of SNAP or its Subsidiaries of any 28 money or other property or accelerate or provide any other rights or benefits to any present or former employee of SNAP or its Subsidiaries as a result of the transaction contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of Code Section 280G. (q) ABSENCE OF CERTAIN BUSINESS PRACTICES. Neither SNAP, nor any officer, employee or agent of SNAP, nor any other Person acting on behalf of SNAP, has, directly or indirectly, within the past five years given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other Person or entity who is or may be in a position to help or hinder SNAP (or assist SNAP in connection with any actual or proposed transaction) which (x) subjects any party or NMC or any of their respective Affiliates, to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (y) if not given in the past, could have had a Material Adverse Effect or (z) if not continued in the future, could have a Material Adverse Effect or which might subject any party or NMC or any of their respective Affiliates to suit or penalty in any private or governmental litigation or proceeding. (r) TAX MATTERS. Except as set forth on SCHEDULE 4.2(R), (i) SNAP and its Subsidiaries have timely filed (or have had timely filed on their behalf) or will timely file or cause to be timely filed, all Tax Returns required by applicable law to be filed by SNAP and its Subsidiaries prior to the Effective Time. All such Tax Returns are or will be true, complete and correct in all material respects. There are no outstanding agreements or waivers extending the statutory period of limitation applicable to any of such Tax Returns and SNAP and its Subsidiaries has not requested any extension of time within which to file any material Tax Return, which return has not yet been filed. There is no pending claim by any Tax Authority of a jurisdiction where SNAP or any of its Subsidiaries have not filed Tax Returns that SNAP are any of its Subsidiaries are or may have been subject to taxation by that jurisdiction. All Taxes required to be withheld by SNAP or its Affiliates with respect to their activities, properties, employees or independent contractors have been withheld and paid over to the appropriate Tax Authority. (ii) SNAP and its Subsidiaries have paid (or have had paid on their behalf), or where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse), or will establish or cause to be established on or before the Effective Time, an adequate accrual for the payment of, all Taxes due with respect to any period beginning prior to the Effective Time. No deficiency or adjustment for any Taxes has been threatened, proposed, asserted or assessed against SNAP or its Subsidiaries. There are no liens for Taxes upon the assets of SNAP or its Subsidiaries, except for liens for current Taxes not yet due. (iii) SNAP and its Subsidiaries are not required to include in income any adjustment pursuant to Section 481(a) of the Code or any similar applicable provision by reason of a voluntary change in accounting method initiated by SNAP or its Subsidiaries, and neither the Internal Revenue Service nor any taxing authority has proposed in writing any such adjustment or change in accounting method. SNAP and its Subsidiaries have not received a tax 29 ruling or entered into a closing agreement with any taxing authority that would have a Material Adverse Effect on SNAP or its Subsidiaries. (iv) SNAP and its Subsidiaries have not made any payments, are not obligated to make any payments, and are not a party to any agreement that could obligate it to make any payments that would not be deductible pursuant to Section 280G of the Code. (v) SNAP has been and currently is taxable as a partnership for federal income tax purposes and in all jurisdictions in which it is subject to Taxes or files Tax Returns. Each of SNAP's Subsidiaries has been and currently is (A) wholly owned by SNAP and (B) an entity disregarded from its owner pursuant to Section 301.7701-2 of the Treasury Regulations. Neither SNAP nor any Subsidiary is a party to any safe harbor lease within the meaning of Section 168(f)(8) of the Code, as in effect prior to amendment by the Tax Equity and Fiscal Responsibility Act of 1982. SNAP and its Subsidiaries are not a party to any joint venture, partnership, or other agreement, contract, or arrangement (either in writing or verbally, formally or informally) which could be treated as partnership for federal income tax purposes. (vi) Neither SNAP nor any of its Subsidiaries has a "permanent establishment," as defined in any applicable Tax treaty or convention of the United States of America, or fixed place of business in any foreign country. SNAP and its Subsidiaries are in compliance with the terms and conditions of any applicable tax exemptions, agreements or orders of any foreign government to which it may be subject or which it may have claimed, and the transactions contemplated by this Agreement will not have any adverse effect on such compliance. (vii) Neither SNAP nor any of its Subsidiaries is or has been bound by any tax sharing or tax allocation agreement, and it has no contractual obligation to indemnify any other person with respect to Taxes. (s) YEAR 2000 COMPLIANCE. SNAP has adopted and implemented a commercially reasonable plan to provide (x) that the change of the year from 1999 to the year 2000 will not have a Material Adverse Effect and (y) that the impacts of such change on the venders and customers of SNAP will not have a Material Adverse Effect. In SNAP's reasonable best estimate, no expenditures materially in excess of currently budgeted items previously disclosed to Xenon 2 will be required in order to cause the information and business systems of SNAP to operate properly following the change of the year 1999 to the year 2000. SNAP reasonably expects any material issues related to such change of the year will be resolved in accordance with the timetable set forth in such plan (and in any event on a timely basis in order to be resolved before the year 2000). Between the date of this Agreement and the Effective Time, SNAP shall continue to use commercially reasonable efforts to implement such plan. (t) OPTIONS. Except for the SNAP 1998 LLC Option Plan, SNAP has never adopted or maintained any option plan or other plan providing for equity compensation of any Person. As of May 9, 1999, SNAP has reserved 1,604,938 units for issuance pursuant to the SNAP 1998 LLC Option Plan ("SNAP OPTIONS"), of which 1,432,970 have been issued as of 30 May 9, 1999, all of which units remain subject to SNAP Options unexercised as of May 9, 1999. Except as set forth in SCHEDULE 4.2(T), none of the SNAP Options will be accelerated in any way by the transactions contemplated by this Agreement. SNAP has made available to NBC accurate and complete copies of all option plans pursuant to which SNAP has granted options and the applicable vesting schedule for each such option. All units subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and non-assessable. Except as set forth in SCHEDULE 4.2(T), there are no commitments or agreements of any character to which SNAP is bound obligating SNAP to accelerate the vesting of any SNAP Options as a result of this Agreement. SCHEDULE 4.2(E) lists each outstanding SNAP Option and identifies with respect to each such SNAP Option; its exercise price; its grant date; its vesting schedule; and what portion of such SNAP Option remains outstanding as of May 9, 1999. NBC shall prepare and deliver to Xenon 2 and Xoom an updated version of SCHEDULE 4.2(E) prior to the Effective Time as of a date no earlier than 5 days prior to the Effective Time. 4.3 REPRESENTATIONS AND WARRANTIES OF XOOM AND XENON 2. Xoom and Xenon 2 represent and warrant to NBC and NMC as follows: (a) DUE ORGANIZATION, POWER AND GOOD STANDING. Xoom, Xenon 2 and each of their respective Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. Xoom, Xenon 2 and each of their respective Subsidiaries party to an Implementing Agreement has all requisite power and authority to enter into this Agreement, the Xenon 2 Merger Agreement, the Voting Agreement, the Option Agreement and the Implementing Agreements to which it is a party and to perform its obligations hereunder and thereunder. Xoom, Xenon 2 and each of their respective Subsidiaries is qualified to do business and is in good standing in all jurisdictions in which it conducts its business, except where the failure to do so would not, individually or in the aggregate, taken as a whole, have a Material Adverse Effect. (b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery and performance by Xoom, Xenon 2 and each of their respective Subsidiaries of the Existing Merger Agreement, this Agreement, the Xenon 2 Merger Agreement, the Voting Agreement, the Option Agreement and the Implementing Agreements to which Xoom, Xenon 2 or their respective Subsidiaries is a party and the consummation by Xoom, Xenon 2 and each of their respective Subsidiaries of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of Xoom, Xenon 2 and each of their respective Subsidiaries, subject to obtaining, in the case of the Xenon 2 Merger Agreement, the Stockholder Approval (as defined therein), and, in the case of the Existing Merger Agreement and this Agreement, the affirmative vote of the holders of a majority of the outstanding shares of common stock of Xenon 2 (the "XENON 2 STOCKHOLDER APPROVAL"). The Board of Directors of Xoom, by resolutions duly adopted by unanimous vote with one abstention at a meeting duly called and held and not subsequently rescinded or modified in any way, has duly determined that each of the Existing Merger Agreement and this Agreement is advisable for Xoom and its stockholders, 31 approved each of the Existing Merger Agreement and this Agreement and the Merger and recommended that the stockholders of Xoom adopt the Xenon 2 Merger Agreement and approve the transactions contemplated thereby and vote in favor of Xoom, as sole stockholder of Xenon 2, adopting the NMC Agreement at the Xenon 2 Stockholder Meeting. Each of the Existing Merger Agreement, this Agreement, the Xenon 2 Merger Agreement, the Option Agreement and the Voting Agreement has been, and each of the other Implementing Agreements to which Xoom, Xenon 2 or any of their respective Subsidiaries is a party will on the Closing Date be, duly executed and delivered by Xoom, Xenon 2 and each of their respective Subsidiaries and constitutes or, in the case of the other Implementing Agreements, upon execution thereof will constitute, a valid and legally binding obligation of Xoom, Xenon 2 and each of their respective Subsidiaries, enforceable against each in accordance with their respective terms. (c) GOVERNMENTAL APPROVALS; CONSENTS. Except as described in SCHEDULE 4.3(C), the execution, delivery and performance of this Agreement, the Xenon 2 Merger Agreement, the Voting Agreement, the Option Agreement and the Implementing Agreements by Xoom, Xenon 2 and each of their respective Subsidiaries and the consummation by such party of the transactions contemplated hereby and thereby will not (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws or other governing documents of Xoom, Xenon 2 or their respective Subsidiaries; (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority; (iii) require the consent or approval of any Person (other than a Governmental Authority) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets of Xoom, Xenon 2 or any of their respective Subsidiaries under, any of the terms, conditions or provisions of any contract or license to which Xoom, Xenon 2 or any of their respective Subsidiaries is a party or by which it or its assets or property are bound; or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to Xoom, Xenon 2 or any of their respective Subsidiaries; other than any consents, approvals, authorizations and permits the failure of which to obtain and any violations, conflicts, breaches defaults and other matters set forth pursuant to clauses (ii), (iii) and (iv) above which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (d) CERTAIN FEES. None of Xoom, Xenon 2 or any of their respective Subsidiaries nor the officers, directors or employees thereof have employed any broker or finder or incurred any other Liability for any brokerage fees, commissions or finders' fees in connection with the transactions contemplated hereby; except that Xoom has employed Bear, Stearns & Co., Inc. and Hambrecht & Quist, LLC whose fees and expenses will be paid in accordance with SECTION 10.5 if the transactions contemplated by this Agreement are consummated and otherwise will be paid by Xoom. Xoom has provided NBC a copy of the engagement letter entered into with Hambrecht & Quist, LLC related to the transactions contemplated hereby. (e) OPINION OF FINANCIAL ADVISOR. Xoom has received the opinion of each of Bear, Stearns & Co. Inc. and Hambrecht & Quist, LLC, in each case as of May 9, 1999, with 32 respect to the fairness of the transactions contemplated by the Existing Merger Agreement from a financial point of view which fairness opinion shall remain in effect upon entering into this Agreement. (f) CAPITAL STOCK. (i) As of May 9, 1999, the authorized capital stock of Xoom consists of 40,000,000 shares of Xoom Stock and 5,000,000 shares of Xoom Preferred Stock, of which 17,162,056 shares of Xoom Stock and no shares of Xoom Preferred Stock have been issued and are outstanding as of May 9, 1999. All outstanding shares of Xoom Stock are duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of Xoom or any agreement to which Xoom is a party or by which it is bound and have been issued in compliance with federal and state securities laws. There are no declared or accrued unpaid dividends with respect to any shares of Xoom Stock. All of the shares of capital stock of each of the Subsidiaries of Xoom are duly authorized and issued, fully paid and nonassessable and are owned by Xoom or another Subsidiary of Xoom free and clear of all Liens. Except for the capital stock of its Subsidiaries, Xoom does not own, directly or indirectly, any capital stock or other ownership interest in any Person. (ii) As of May 9, 1999, the authorized capital stock of Xenon 2 consists of 100 shares of common stock, par value $0.0001 per share, of which 100 shares have been issued and are outstanding as of May 9, 1999. Prior to the Closing Date, Xenon 2's certificate of incorporation will be amended to provide for an authorized capital stock sufficient to permit Xenon 2 to issue all of the Class A Common Stock and Class B Common Stock to be issued by Xenon 2 pursuant to this Agreement and the Xenon 2 Merger Agreement. All capital stock issued by Xenon 2 pursuant to the Xenon 2 Merger Agreement and this Agreement will be duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of Xenon 2 or any agreement to which Xenon 2 is a party or by which it is bound and issued in compliance with federal and state securities laws. All of the shares of capital stock of each of the Subsidiaries of Xenon 2 are duly authorized and issued, fully paid and nonassessable and are owned by Xenon 2 free and clear of all Liens. Except for the capital stock of its Subsidiaries, Xenon 2 does not own, directly or indirectly, any capital stock or other ownership interest in any Person. (g) STOCK OPTIONS. Except for the Xoom 1998 Employee Stock Purchase Plan (the "XOOM ESPP"), the Xoom Option Plan pursuant to which the Xoom Plan Options were issued, and the Xoom Non-Plan Options (together with the Xoom Plan Options, the "XOOM OPTIONS"), none of Xoom, Xenon 2 or any of their respective Subsidiaries has ever adopted or maintained any stock option plan or other plan providing for equity compensation of any person. As of May 9, 1999, Xoom has reserved 3,535,224 shares of Xoom Stock for issuance pursuant to the Xoom ESPP, Xoom Plan Options and Xoom Non-Plan Options, of which 3,336,157 have been issued as of May 9, 1999, of which 2,043,556 shares remain subject to Xoom Plan Options unexercised as of May 9, 1999 and 981,212 shares remain subject to Xoom Non-Plan Options unexercised as of May 9, 1999. Except pursuant to SECTION 6.8 and as reflected on SCHEDULE 4.3(G) none of the Xoom Options will be accelerated in any way by the transactions 33 contemplated by this Agreement. Xoom, Xenon 2 and their respective Subsidiaries have made available to NMC accurate and complete copies of all stock option plans pursuant to which Xoom, Xenon 2 and their respective Subsidiaries have granted stock options that are currently outstanding, the form of all stock option agreements evidencing such options and the applicable vesting schedule for each such option. All shares of Xoom Stock and Class A Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and non-assessable. Except as set forth in SCHEDULE 4.3(G) or as contemplated by this Agreement, there are no commitments or agreements of any character to which Xoom, Xenon 2 or any of their respective Subsidiaries are bound obligating Xoom, Xenon 2 or any of their respective Subsidiaries to accelerate the vesting of any Xoom Option as a result of this Agreement. SCHEDULE 4.3(G) lists each outstanding Xoom Option and identifies with respect to each such Xoom Option whether it is a Xoom Plan Option or a Xoom Non-Plan Option; its exercise price; its grant date; its vesting schedule; and what portion of such Xoom Option remains outstanding as of May 9, 1999. Xoom, Xenon 2 and their respective Subsidiaries shall prepare and deliver to NMC an updated version of SCHEDULE 4.3(G) prior to the Effective Time as of a date no earlier than 5 days prior to the Effective Time. (h) OBLIGATIONS WITH RESPECT TO CAPITAL STOCK. Except as set forth in SECTION 4.3(F) and SECTION 4.3(G) and on SCHEDULE 4.3(H), there are no equity securities, partnership interests or similar ownership interests of any class of any equity security of Xoom, Xenon 2 or any of their respective Subsidiaries, or any securities exchangeable or convertible into or exercisable for such equity securities, partnership interests or similar ownership interests, issued, reserved for issuance or outstanding. Except as set forth in SCHEDULE 4.3(H) or as set forth in SECTION 4.3(G) hereof, there are no subscriptions, options, warrants, equity securities, partnership interests or similar ownership interests, calls, rights (including preemptive rights), commitments or agreements of any character to which Xoom, Xenon 2 or any of their respective Subsidiaries is a party or by which Xoom, Xenon 2 or any of their respective Subsidiaries is bound obligating Xoom, Xenon 2 or any of their respective Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or acquisition of, any shares of capital stock, partnership interests or similar ownership interests of Xoom, Xenon 2 or any of their respective Subsidiaries or obligating Xoom, Xenon 2 or any of their respective Subsidiaries to grant, extend, accelerate the vesting of or enter into any such subscription, option, warrant, equity security, call, right, commitment or agreement. Except as contemplated by this Agreement, there are no registration rights and there is no voting trust, proxy, stockholder rights plan, antitakeover plan or other agreement or understanding to which Xoom, Xenon 2 or any of their respective Subsidiaries is a party or by which they are bound with respect to any equity security, partnership interest or similar ownership interest of any class of any equity security of Xoom, Xenon 2 or any of their respective Subsidiaries. (i) SEC FILINGS, FINANCIAL INFORMATION, LIABILITIES. Xoom has filed and made publicly available a true and complete copy of each report, schedule, registration statement and definitive proxy statement required to be filed with the SEC since December 9, 1998 (the "SEC 34 DOCUMENTS"). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, applicable to such SEC Documents. None of the SEC Documents when filed contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of Xoom included in the SEC Documents comply as to form in all material respect with the applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP during the period involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q of the SEC, or for normal year-end adjustments) and fairly present in all material respects the consolidated financial position of Xoom and its consolidated Subsidiaries as at the dates thereof and the consolidated results of their operations and cash for the periods then ended. Except as set forth in the SEC Documents (including any item accounted for in the financial statements contained in the SEC Documents or set forth in the notes thereto) as of December 31, 1998, neither Xoom nor any of its Subsidiaries had, and since such date neither Xoom or any of its Subsidiaries has incurred, any claims, liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) which, individually or in the aggregate, would have a Material Adverse Effect on Xoom (other than claims, liabilities or obligations contemplated by this Agreement or expressly permitted to be incurred pursuant to this Agreement). In addition, since December 31, 1998, there has not been any declaration, setting aside or payment of a dividend or other distribution with respect to Xoom Stock or any material change in accounting methods or practices by Xoom or any of its Subsidiaries. (j) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed on SCHEDULE 4.3(J) since December 31, 1998, Xoom, Xenon 2 and each of their respective Subsidiaries have conducted their businesses in all material respects only in the ordinary course, consistent with past practice and there has not been prior to May 9, 1999, (x) any material adverse change in the assets, liabilities, business, results of operations or financial condition of Xoom, Xenon 2, or any of their respective Subsidiaries or (y) except in the ordinary course of business consistent with past practice and except for such matters that would not reasonably be expected to have a Material Adverse Effect, any damage, destruction, loss, conversion, condemnation or taking by eminent domain related to any material asset of Xoom, Xenon 2 and any of their respective Subsidiaries, taken as a whole. In addition, except as disclosed on SCHEDULE 4.3(J), from December 31, 1998 to May 9, 1999, none of Xoom, Xenon 2 or any of their respective Subsidiaries has (A) acquired or disposed of any material assets or entered into any agreement or other arrangement for any such acquisition or disposition or (B) relinquished, forgiven or canceled any material debts or claims. (k) PROPERTIES, CONTRACTS, PERMITS AND OTHER DATA. Except as specified in SCHEDULE 4.3(K) hereto, all rights, licenses, leases, registrations, applications, contracts, commitments and other agreements of Xoom, Xenon 2 and their respective Subsidiaries are in full force and effect and are valid and enforceable in accordance with their respective terms except for such failures to be in full force and effect and valid and enforceable that would not, 35 individually or in the aggregate, have a Material Adverse Effect. None of Xoom, Xenon 2 or any of their respective Subsidiaries is in breach or default in the performance of any obligation thereunder and no event has occurred or has failed to occur whereby any of the other parties thereto have been or will be released therefrom or will be entitled to refuse to perform thereunder, the enforcement of which would have, either individually or in the aggregate, a Material Adverse Effect. Xoom has provided to NBC complete and accurate copies of its current annual budget and operating plan (the "XOOM BUDGET"). (l) LEGAL PROCEEDINGS. Except as described in SCHEDULE 4.3(L), there is no litigation, proceeding or governmental investigation to which Xoom, Xenon 2 or their respective Subsidiaries is a party pending or, to the best Knowledge of Xoom, Xenon 2 and their respective Subsidiaries, threatened against Xoom, Xenon 2 or any of their respective Subsidiaries which, either individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect or which, as of May 9, 1999, seeks to restrain or enjoin the consummation of any of the transactions contemplated hereby. None of Xoom, Xenon 2, or any of their respective Subsidiaries is a party to, nor are any of their respective assets subject to, any judgment, writ, decree, injunction or order entered by any court or governmental authority (domestic or foreign) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. (m) LABOR CONTROVERSIES. Except as set forth on SCHEDULE 4.3(M), (i) there have been no labor strikes, slow-downs, work stoppages, lock-outs or other material labor controversies or disputes during the past two years, nor is any such strike, slow-down, work stoppage or other material labor controversy or dispute pending or, to the best Knowledge of such party, threatened with respect to the current or former employees of Xoom, Xenon 2 and their respective Subsidiaries, (ii) none of Xoom, Xenon 2 or any of their respective Subsidiaries is a party to any labor contract, collective bargaining agreement, contract, letter of understanding or, to such party's Knowledge, any other agreement, formal or informal with any labor union or organization, nor are any of Xoom's, Xoom 2's or any of their respective Subsidiaries' employees represented by any labor union or organization nor have there been any labor union organizing activities at any Xoom, Xenon 2 or any of their respective Subsidiaries' facilities within the last three years and (iii) none of Xoom, Xenon 2 or any of their respective Subsidiaries has closed any facility, effectuated any layoffs of employees or implemented any early retirement, separation or window program within the past two years nor has Xoom, Xenon 2 or any of their respective Subsidiaries planned or announced any such action or program for the future. (n) INTELLECTUAL PROPERTY. Xoom, Xenon 2 and their respective Subsidiaries own or are licensed or otherwise have the right to use, all Intellectual Property currently used by Xoom, Xenon 2 and each of their respective Subsidiaries (the "XOOM INTELLECTUAL PROPERTY"), except as would not, individually or in the aggregate, have a Material Adverse Effect. None of Xoom, Xenon 2 or any of their respective Subsidiaries has infringed upon or is in conflict with the Intellectual Property of any third party nor has Xoom, Xenon 2 or any of their 36 respective Subsidiaries received any written notice of any claim that Xoom, Xenon 2 or any of their respective Subsidiaries has infringed upon or is in conflict with any Intellectual Property of any third party, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on SCHEDULE 4.3(N), none of the rights of Xoom, Xenon 2 or their respective Subsidiaries to the Xoom Intellectual Property will be impaired in any way by the transactions provided for herein, and all of the rights of Xoom, Xenon 2 and their respective Subsidiaries to the Xoom Intellectual Property will be fully enforceable by Xenon 2 after the Closing Date to the same extent as such rights would have been enforceable by Xoom, Xenon 2 and their respective Subsidiaries before the Closing, without the consent or agreement of any other party other than any consents and agreements the failure of which to obtain, individually or in the aggregate, would not have a Material Adverse Effect. There have been no claims (whether private or governmental) against Xoom, Xenon 2 or their respective Subsidiaries asserting the invalidity or unenforceability of its ownership, license or other right to use to any of the registered Xoom Intellectual Property. (o) GOVERNMENT LICENSES, PERMITS, ETC. Except as set forth on SCHEDULE 4.3(O), Xoom, Xenon 2 and their respective Subsidiaries have all licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Authorities required for the conduct of its Business as presently conducted, except where failure would not, individually or in the aggregate, have a Material Adverse Effect. (p) CONDUCT OF BUSINESS IN COMPLIANCE WITH REGULATORY AND CONTRACTUAL REQUIREMENTS. Xoom, Xenon 2 and their respective Subsidiaries have complied with all applicable laws, ordinances, regulations or orders or other requirements of any Governmental Authority, including, without limitation, all rules, regulations and administrative orders relating to anti-competitive practices, discrimination, employment, health and safety, except where the failure to be in such compliance would not have, either individually or in the aggregate, a Material Adverse Effect. (q) EMPLOYEE BENEFIT MATTERS. (i) SCHEDULE 4.3(Q)(I) contains a true and complete list of each "employee benefit plan" (within the meaning of section 3(3) of ERISA), and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any employee or former employee of Xoom, Xenon 2 or their respective Subsidiaries has any present or future right to benefits and under which Xoom, Xenon 2 or their respective Subsidiaries has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "XOOM PLANS". (ii) With respect to each Xoom Plan, Xoom, Xenon 2 and their respective Subsidiaries have made available to NBC a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (A) any related 37 trust agreement or other funding instrument; (B) the most recent determination letter, if applicable; (C) any summary plan description and other written communications (or a description of any oral communications) by Xoom, Xenon 2 or their respective Subsidiaries to their employees concerning the extent of the benefits provided under a Xoom Plan; and (D) for the most recent two years (I) the Form 5500 and attached schedules and (II) audited financial statements. (iii) (A) Except as set forth on SCHEDULE 4.3(Q)(III), each Xoom Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code and other applicable laws, rules and regulations; (B) each Xoom Plan which is intended to be qualified within the meaning of Code section 401(a) is so qualified and has received a favorable determination letter as to its qualification (or established using a prototype plan form which has received such a letter), and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification; (C) for each Xoom Plan with respect to which a Form 5500 has been filed, no material change has occurred with respect to the matters covered by the most recent Form since the date thereof; (D) no nonexempt "prohibited transaction" (as such term is defined in ERISA section 406 and Code section 4975) with respect to Xoom Plans; and (E) no Xoom Plan provides retiree welfare benefits and none of Xoom, Xenon 2 or any of their respective Subsidiaries have any obligations to provide any retiree welfare benefits except as provided under Section 4980B of the Code. (iv) No Xoom Plan is subject to Title IV of ERISA (including a multiemployer plan within the meaning of Section 3(37) of ERISA), no Xoom Plan is a multiple employer plan; and no Xoom Plan is subject to the minimum funding requirements of ERISA Section 302 or Code Section 412. (v) None of Xoom, Xenon 2 or any of their respective Subsidiaries nor any Member of the Controlled Group of which it is a member has (A) engaged in, or is a successor or parent corporation to an entity that has engaged in, a transaction described in Sections 4069 or 4212(c) of ERISA or (B) incurred, or could reasonably be expected to incur, any liability under (I) Title IV of ERISA arising in connection with the termination of, or a complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA or (II) Section 4971 of the Code that in either case could become a liability of Xenon 2, Xoom or NMC or any of their respective Subsidiaries after the Closing Date. The assets of Xoom, Xenon 2 and all of their respective Subsidiaries are not now, nor will they after the passage of time be, subject to any lien imposed under Code Section 412(n) by reason of a failure of any of any Subsidiary or any Member of the Controlled Group of which it is a member to make timely installments or other payments required under Code Section 412. (vi) With respect to any Xoom Plan, (A) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of Xoom, Xenon 2 or their respective Subsidiaries, threatened and (B) no facts or circumstances exist that could reasonably be expected to give rise to any such actions, suits or claims. 38 (vii) Except as provided on SCHEDULE 4.3(Q)(VII), no Xoom Plan exists that could result in the payment to any present or former employee of Xoom, Xenon 2 or their respective Subsidiaries of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Xoom, Xenon 2 or their respective Subsidiaries as a result of the transaction contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of Code Section 280G. (r) ABSENCE OF CERTAIN BUSINESS PRACTICES. None of Xoom, Xenon 2 or any of their respective Subsidiaries, nor any officer, employee or agent thereof, nor any other Person acting on behalf of such Persons, has, directly or indirectly, within the past five years given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other Person or entity who is or may be in a position to help or hinder Xoom, Xenon 2 or their respective Subsidiaries (or assist Xoom, Xenon 2 or their respective Subsidiaries in connection with any actual or proposed transaction) which (x) subjects any party or Xenon 2 or any of their respective Subsidiaries, to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (y) if not given in the past, could have had a Material Adverse Effect or (z) if not continued in the future, could have a Material Adverse Effect or which might subject any party or Xenon 2 or any of their respective Subsidiaries to suit or penalty in any private or governmental litigation or proceeding. (s) TAX MATTERS. Except as set forth on SCHEDULE 4.3(S), (i) Xoom, Xenon 2 and each of their respective Subsidiaries have timely filed (or have had timely filed on their behalf) or will timely file or cause to be timely filed, all Tax Returns required by applicable law to be filed by any of them prior to the Effective Time. All such Tax Returns are or will be true, complete and correct in all material respects. There are no outstanding agreements or waivers extending the statutory period of limitation applicable to any of such Tax Returns and none of Xoom, Xenon 2 nor any of their respective Subsidiaries has requested any extension of time within which to file any material Tax Return, which return has not yet been filed. There is no pending claim by any Tax Authority of a jurisdiction where Xoom, Xenon 2 or any of their respective Subsidiaries has not filed Tax Returns that Xoom, Xenon 2 or such Subsidiary is or may have been subject to taxation by that jurisdiction. All Taxes required to be withheld by Xoom, Xenon 2 or their respective Affiliates with respect to their activities, properties, employees or independent contractors have been withheld and paid over to the appropriate Tax Authority. (ii) Xoom, Xenon 2 and each of their respective Subsidiaries have paid (or have had paid on their behalf), or where payment is not yet due, have established (or have had established on their behalf and for their sole benefit and recourse), or will establish or cause to be established on or before the Effective Time, an adequate accrual for the payment of, all Taxes due with respect to any period beginning prior to the Effective Time. No deficiency or adjustment for any Taxes has been threatened, proposed, asserted or assessed against Xoom, Xenon 2 or any of their respective Subsidiaries. There are no liens for Taxes upon the assets of Xoom, Xenon 2 or any of their respective Subsidiaries, except for liens for current Taxes not yet due. 39 (iii) None of Xoom, Xenon 2 or any of their respective Subsidiaries is required to include in income any adjustment pursuant to Section 481(a) of the Code or any similar applicable provision by reason of a voluntary change in accounting method initiated by Xoom, Xenon 2 or any of their respective Subsidiaries, and neither the Internal Revenue Service nor any taxing authority has proposed in writing any such adjustment or change in accounting method. None of Xoom, Xenon 2 or any of their respective Subsidiaries has received a tax ruling or entered into a closing agreement with any taxing authority that would have a continuing Material Adverse Effect upon Xoom, Xenon 2 or any of their respective Subsidiaries. (iv) None of Xoom, Xenon 2 or any of their respective Subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement that could obligate it to make any payments that would not be deductible pursuant to Section 280G of the Code. (v) None of Xoom, Xenon 2 or any of their respective Subsidiaries has a "permanent establishment," as defined in any applicable Tax treaty or convention of the United States of America, or fixed place of business in any foreign country. Xoom, Xenon 2 and their respective Affiliates are in compliance with the terms and conditions of any applicable tax exemptions, agreements or orders of any foreign government to which it may be subject or which it may have claimed, and the transactions contemplated by this Agreement will not have any adverse effect on such compliance. (vi) Neither Xoom nor any Subsidiary is a party to any safe harbor lease within the meaning of Section 168(f)(8) of the Code, as in effect prior to amendment by the Tax Equity and Fiscal Responsibility Act of 1982. Xoom and its Subsidiaries are not a party to any joint venture, partnership, or other agreement, contract, or arrangement (either in writing or verbally, formally or informally) which could be treated as partnership for federal income tax purposes. (vii) Neither Xoom nor any of its Subsidiaries is or has been bound by any tax sharing or tax allocation agreement, and it has no contractual obligation to indemnify any other person with respect to Taxes. (t) SECTION 203. The Boards of Directors of Xoom, Xenon 2 and each of their respective Subsidiaries has taken appropriate action so that the provisions of Section 203 of the DGCL restricting "business combinations" with "interested stockholders" (each as defined in such Section 203) will not, prior to the termination of this Agreement pursuant to ARTICLE IX hereof, apply to NBC or NMC or any of their Affiliates with respect to this Agreement, the Xenon 2 Merger Agreement, the Option Agreement, the Voting Agreement, any of the Implementing Agreements or any of the transactions contemplated hereby or thereby. (u) YEAR 2000 COMPLIANCE. Except as set forth on SCHEDULE 4.3(V), Xoom, Xenon 2 and each of their respective Subsidiaries has adopted and implemented a commercially reasonable plan to provide (x) that the change of the year from 1999 to the year 2000 will not have a Material Adverse Effect and (y) that the impacts of such change on the venders and 40 customers of Xoom, Xenon 2 and each of their respective Subsidiaries will not have a Material Adverse Effect. In the reasonable best estimate of Xoom, Xenon 2 and each of their respective Subsidiaries, no expenditures materially in excess of currently budgeted items previously disclosed to Xenon 2 will be required in order to cause the information and business systems of Xoom, Xenon 2 and each of their respective Subsidiaries to operate properly following the change of the year 1999 to the year 2000. Xoom, Xenon 2 and each of their respective Subsidiaries reasonably expects any material issues related to such change of the year will be resolved in accordance with the timetable set forth in such plan (and in any event on a timely basis in order to be resolved before the year 2000). Between May 9, 1999 and the Effective Time, Xoom, Xenon 2 and each of their respective Subsidiaries shall continue to use commercially reasonable efforts to implement such plan. (v) NO BUSINESS ACTIVITIES. Neither Xenon 2 nor Xenon 3 has conducted any activities other than in connection with their organization, the negotiation and execution of this Agreement and the NMC Merger Agreement and the consummation of the transactions contemplated hereby and thereby. 4.4 REPRESENTATIONS AND WARRANTIES WITH RESPECT TO GE INVESTMENTS SUB. GE Investments Sub represents and warrants to Xoom and Xenon 2 as follows: (a) DUE ORGANIZATION, POWER AND GOOD STANDING. GE Investments Sub is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and has the requisite power and authority to own, lease and operate its properties and to conduct its business as now conducted by it. GE Investments Sub has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder and thereunder. GE Investments Sub is qualified to do business and is in good standing in all jurisdictions in which it conducts its business, except where the failure to do so would not, individually or in the aggregate, taken as a whole, have a Material Adverse Effect. (b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery and performance by GE Investments Sub of this Agreement and the consummation by GE Investments Sub of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of GE Investments Sub. This Agreement has been duly executed and delivered by GE Investments Sub and constitutes a valid and legally binding obligation of GE Investments Sub, enforceable against GE Investments Sub in accordance with its terms. (c) GOVERNMENTAL APPROVALS; CONSENTS. Except as described in SCHEDULE 4.1(C), the execution, delivery and performance of this Agreement and the consummation by GE Investments Sub of the transactions contemplated hereby will not (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws or other governing documents of GE Investments Sub; (ii) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority; (iii) require the consent or approval of any Person (other than a Governmental Authority) or violate or conflict with, or result in a breach of any provision of, constitute a default (or an event which with notice or lapse of time or 41 both would become a default) or give to any third party any right of termination, cancellation, amendment or acceleration under, or result in the creation of a Lien on any of the assets of GE Investments Sub under, any of the terms, conditions or provisions of any contract or license to which GE Investments Sub is a party or by which it or its assets or property are bound; or (iv) violate or conflict with any order, writ, injunction, decree, statute, rule or regulation applicable to GE Investments Sub; other than any consents, approvals, authorizations and permits the failure of which to obtain and any violations, conflicts, breaches defaults and other matters set forth pursuant to clauses (ii), (iii) and (iv) above which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. IV.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the representations and warranties given by the parties in ARTICLE IV and in the certificates delivered pursuant to ARTICLE VII shall survive the Closing other than the representations and warranties set forth in SECTION 4.1(C)(III) and SECTION 4.1(V). IV.6 NO OTHER REPRESENTATION OR AND WARRANTIES. Except for the representations and warranties set forth in this ARTICLE IV, the parties hereto make no other representations or warranties, express or implied. ARTICLE V CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME V.1 CONDUCT OF THE BUSINESS OF XOOM PENDING THE CLOSING. Xoom agrees that except with the prior written consent of NBC and except as may be expressly permitted by this Agreement or as set forth on SCHEDULE 5.1, prior to the Closing, it shall, and shall cause, its Subsidiaries to operate their businesses only in the usual, regular and ordinary manner, on a basis consistent with past practice and, to the extent consistent with such operation, use its reasonable efforts to preserve its present business organization intact, keep available the services of its present employees, preserve its present business relationships (consistent with past practice) and maintain all rights, privileges and franchises in the normal conduct of Xoom's businesses. Without limitation of the foregoing, from May 9, 1999 until the Effective Time, except as expressly permitted by this Agreement or as set forth on SCHEDULE 5.1, Xoom shall not: (a) amend its certificate of incorporation or bylaws; (b) issue, purchase or redeem, or authorize or propose the issuance, purchase or redemption of, or declare or pay any dividend with respect to, any shares of capital stock of Xoom or any class of securities convertible into, or rights, warrants or options to acquire, any such shares of other convertible securities other than (i) issuances of Xoom Stock pursuant to Xoom Options outstanding on May 9, 1999, the Option Agreement or the obligations to issue Xoom Stock set forth on SCHEDULE 4.3(H) and (ii) (x) Xoom Options with an exercise price of not less than the fair market value on the date of grant and vesting over not less than 2 years to be 42 issued to employees currently holding Xoom Plan Options exercisable in the aggregate for not more than that number of shares of Xoom Plan Stock that equals 15% of the shares of Xoom stock for which Xoom Plan Options will remain unvested and nonexercisable after giving effect to the acceleration of vesting described in SECTION 6.8; and (y) Xoom Options with an exercise price of not less than 85% of the fair market value on the date of grant, and vesting over not less than 3 years, to be issued to employees currently holding Xoom Non-Plan Options exercisable in the aggregate for not more than the lesser of (i) that number of shares of Xoom that equals two times the number of shares of Xoom for which Xoom Non-Plan Options will remain unvested and nonexercisable and terminate after giving effect to the acceleration of vesting described in SECTION 6.8 or (ii) 150,000 shares of Xoom. (c) adopt any stockholders rights plan or take any other action which would restrict or impede the ability of NBC or its Subsidiaries to acquire any shares of Xoom Stock to the extent permitted by the terms hereof; (d) acquire any business or any assets (other than inventory and any other assets acquired solely for use in an existing business in the ordinary course consistent with past practice of such business) or acquire any minority investment in any Person, except for any acquisitions for consideration not in excess of $10,000,000 individually or $25,000,000 in the aggregate taken together with all such acquisitions. (e) dispose of any business or any assets (other than inventory and any other assets acquired solely for use in an existing business in the ordinary course consistent with past practice of such business) or dispose of any minority investment in any Person, except for any dispositions having a fair market value not in excess of $10,000,000 individually or $25,000,000 in the aggregate taken together with all such dispositions; (f) except as otherwise permitted by this SECTION 5.1, make any expenditures other than in the ordinary course of business and in any event not in excess of the aggregate budgeted expenditures provided in the Xoom Budget; (g) except as otherwise permitted by SECTION 5.1(D),enter into any transaction involving a cash expenditure other than in the ordinary course of business consistent with past practice; (h) except as otherwise permitted by this SECTION 5.1, enter into any transaction involving the incurrence of indebtedness other than in the ordinary course of business consistent with past practice; (i) enter into any transaction involving the merger, consolidation or sale of all or substantially all of the assets of Xoom; (j) file any voluntary petition for bankruptcy or receivership of Xoom or fail to oppose any other person's petition for bankruptcy or action to appoint a receiver of Xoom; 43 (k) except as required by applicable law, as contemplated in this Agreement or the Xenon 2 Merger Agreement or to the extent required under existing employee benefit plans, agreements or arrangements as in effect on May 9, 1999, (A) increase the compensation or fringe benefits of any present or former director, officer or employee of Xoom or its Subsidiaries, except for increases, in the ordinary course of business, in salary or wages of employees who are not officers, (B) except in the ordinary course of business grant any severance or termination pay to any present or former director, officer or employee of Xoom or its Subsidiaries or (C) enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any present or former director, officer or employee of Xoom or its Subsidiaries; (l) allow any payables or other obligations to become delinquent, except where the amount or validity of such payables or obligations is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been recorded, or change or modify the usual, regular and ordinary manner of collecting receivables from past practice; (m) except with respect to transactions permitted by SECTION 5.1(D) and SECTION 5.1(E), enter into any contract, agreement, joint venture or other commitment that is not terminable in Xoom's sole discretion on or prior to one year from May 9, 1999 without payment of any termination fee or penalty; (n) settle any claim, action or proceeding involving money damages in excess of $50,000 in the aggregate or that could result in any injunction or prohibition on any part of the business of Xoom; (o) amend, supplement or otherwise modify the Xenon 2 Merger Agreement or terminate the Xenon 2 Merger Agreement other than in accordance with Section 9.1(f) thereof; or (p) authorize any of, or commit or agree to take any of, the foregoing actions. V.2 CONDUCT OF THE BUSINESS OF SNAP PENDING THE CLOSING. NBC agrees that except with the prior written consent of Xoom, and except as may be expressly permitted or contemplated by this Agreement or as set forth on SCHEDULE 5.2, prior to the Closing Date, NBC shall use reasonable efforts to cause each of SNAP and its Subsidiary to be operated only in the usual, regular and ordinary manner, on a basis consistent with past practice and, to the extent consistent with such operation, use its reasonable efforts to preserve its present business organization intact, keep available the services of its present employees, preserve its present business relationships and maintain all rights, privileges and franchises necessary or desirable in the normal conduct of SNAP's businesses. Without limiting the generality of the foregoing, from May 9, 1999 until the Closing, except as expressly permitted or contemplated by this 44 Agreement or as set forth on SCHEDULE 5.2, NBC shall use reasonable efforts not to permit SNAP to: (a) amend the SNAP LLC Agreement; (b) issue, purchase or redeem, or authorize or propose the issuance, purchase or redemption of, or make any distribution with respect to, any equity interests of SNAP or any class of securities convertible into, or rights, warrants or options to acquire, any such equity interests or other convertible securities other than (i) pursuant to employee options outstanding on May 9, 1999 or (ii) SNAP Options with an exercise price of not less than the fair market value on the date of grant to be issued to employees exercisable in the aggregate for not more than 195,132 units of SNAP; (c) acquire any business or any assets (other than inventory and any other assets acquired solely for use in an existing business in the ordinary course consistent with past practice of such business) or acquire any minority investment in any Person, except for any acquisitions for consideration not in excess of $10,000,000 individually or $25,000,000 in the aggregate taken together with all such acquisitions; (d) dispose of any business or any assets (other than inventory and any other assets acquired solely for use in an existing business in the ordinary course consistent with past practice of such business) or dispose of any minority investment in any Person, except for any dispositions having a fair market value not in excess of $10,000,000 individually or $25,000,000 in the aggregate taken together with all such dispositions; (e) except as otherwise permitted by this SECTION 5.2, make any expenditures other than in the ordinary course of business and in any event not in excess of the aggregate budgeted expenditures provided in the SNAP Budget; (f) except as otherwise permitted by SECTION 5.2(C), enter into any transaction involving a cash expenditure by SNAP other than in the ordinary course of business consistent with past practice; (g) except as otherwise permitted by this SECTION 5.2, enter into any transaction involving the incurrence of indebtedness by SNAP other than in the ordinary course of business consistent with past practice; (h) file any voluntary petition for bankruptcy or receivership of SNAP or fail to oppose any other person's petition for bankruptcy or action to appoint a receiver of SNAP; (i) except with respect to transactions permitted by SECTION 5.2 (C) and SECTION 5.2(D), enter into any contract, agreement, joint venture or other commitment that is not terminable in SNAP's sole discretion on or prior to one year from May 9, 1999 without payment of any termination fee or penalty; 45 (j) except as required by applicable law, as contemplated in this Agreement or the Xenon 2 Merger Agreement or to the extent required under existing employee benefit plans, agreements or arrangements as in effect on May 9, 1999, (A) increase the compensation or fringe benefits of any employee of SNAP, except for increases, in the ordinary course of business, in salary or wages of employees who are not officers, (B) except in the ordinary course of business grant any severance or termination pay to any employee of SNAP, (C) hire, except in the ordinary course of business, any new employees or consultants, or (D) enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any employee of SNAP; (k) allow any payables or other obligations to become delinquent, except where the amount or validity of such payables or obligations is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been recorded, or change or modify the usual, regular and ordinary manner of collecting receivables from past practice; (l) except as otherwise permitted by SECTION 5.2(D), dispose of or abandon outside the ordinary course of business any assets of SNAP that are material, individually or in the aggregate, to SNAP and not transfer any rights of material value of SNAP; (m) permit or allow any of the material assets of SNAP to become subject to any Liens, except for Permitted Liens or waive any material claims or rights of SNAP; (n) except as otherwise permitted by SECTION 5.2(C), acquire or agree to acquire outside the ordinary course of business any assets that are material, individually or in the aggregate, to SNAP; (o) enter into any transaction involving the merger, consolidation or sale of all or substantially all of the assets of SNAP; (p) settle any claim, action or proceeding involving money damages in excess of $50,000 in the aggregate or that could result in any injunction or prohibition on any part of the business of SNAP; or (q) authorize any of, or commit or agree to take any of, the foregoing actions. V.3 CONDUCT OF THE NBC MULTIMEDIA BUSINESSES PENDING THE CLOSING. NBC agrees that except with the prior written consent of Xoom and except as may be expressly permitted or contemplated by this Agreement or as set forth on SCHEDULE 5.2, prior to the Closing Date, it shall, and shall cause its Subsidiaries to, operate the NBC Multimedia Businesses only in the usual, regular and ordinary manner, on a basis consistent with past practice and, to the extent consistent with such operation, use its reasonable efforts to preserve the NBC Multimedia 46 Businesses' present business organization intact, keep available the services of the NBC Multimedia Businesses' present employees, preserve their present business relationships and maintain all rights, privileges and franchises necessary or desirable in the normal conduct of the NBC Multimedia Businesses. NBC shall not cause or permit NMC to conduct any business or take other actions other than for the purposes of effectuating the transactions contemplated hereby. Without limiting the generality of the foregoing, from May 9, 1999 until the Closing, except as expressly permitted or contemplated by this Agreement or as set forth on SCHEDULE 5.2, NBC shall not: (a) except as required by applicable law or to the extent required under existing employee benefit plans, agreements or arrangements as in effect on May 9, 1999 or as contemplated by this Agreement, (A) increase the compensation or fringe benefits of any Transferred Employee (including, for all purposes in this section, persons eligible to become Transferred Employees upon occurrence of future events such as the acceptance of offers of employment), except for increases, in the ordinary course of business, in salary or wages of employees who are not officers, (B) except in the ordinary course of business grant any severance or termination pay to any Transferred Employee or (C) enter into or amend or terminate any collective bargaining, bonus, profit sharing, thrift, compensation, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any Transferred Employee; (b) transfer, dispose of or abandon any of the material NBC Multimedia Assets or Videoseeker Assets, other than in the ordinary course of business, consistent with past practice; (c) permit or allow any of the NBC Multimedia Assets or Videoseeker Assets to become subject to any Liens, except for Permitted Liens or waive any material claims or rights relating to the NBC Multimedia Assets or the Videoseeker Assets; (d) transfer any rights of material value included in the NBC Multimedia Assets or Videoseeker Assets; (e) authorize any of, or commit or agree to take any of, the foregoing actions. V.4 ACCESS TO INFORMATION. From May 9, 1999 to the Closing Date, each of Xoom and NBC and their respective Subsidiaries shall afford the officers, employees, auditors and other agents of NBC and Xoom reasonable access during normal business hours to the officers, employees, properties, offices, plants and other facilities of (i) SNAP and the NBC Multimedia Businesses, in the case of NBC and (ii) Xoom and its Subsidiaries, in the case of Xoom and Xenon 2, and to the contracts, commitments, books, records and Tax Returns relating thereto, and shall furnish such Persons all such documents and such financial, operating and other data and information regarding such businesses and Persons that are in the possession of such Person as NBC or Xoom, as applicable, through their respective officers, employees or agents may from time to time reasonably request. All such information, as well as any information provided prior 47 to the date hereof, shall be used only for the purposes of the transactions contemplated hereby and, unless required by subpoena or otherwise required by law, the parties agree not to disclose to any third party (other than their respective professional advisors) any portion of the information so provided which constitutes confidential information (i.e., information that is not otherwise publicly available). The confidential information shall not, without the other parties' prior written consent, be disclosed to third parties. The parties will disclose the information internally only to persons who require knowledge thereof for the purposes of the transactions contemplated hereby. V.5 NO SOLICITATION. (a) From and after May 9, 1999 until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Xoom shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, Xoom or any of its Subsidiaries to, directly or indirectly, (i) take any action to solicit, initiate, encourage or knowingly facilitate any Material Transaction Proposal (as defined below) or the submission of a Material Transaction Proposal or (ii) enter into or participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, a Material Transaction Proposal; PROVIDED that, prior to obtaining the affirmative vote of the holders of a majority of the outstanding shares of common stock of Xoom to adopt the Xenon 2 Merger Agreement (the "XOOM STOCKHOLDER APPROVAL" and, together with the Xenon 2 Stockholder Approval, the "STOCKHOLDER APPROVALS"), in response to an unsolicited BONA FIDE Takeover Proposal, Xoom may, to the extent that the Board of Directors of Xoom determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, (A) furnish information with respect to Xoom and its Subsidiaries to the person making such Takeover Proposal and its representatives and discuss such information with such person and its representatives and (B) participate in negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any request for information or any Material Transaction Proposal, the material terms and conditions of such request or Material Transaction Proposal and the identity of the person making any such request or Material Transaction Proposal, and will keep NBC fully informed on a current basis of the status and details of any such request or Material Transaction Proposal, PROVIDED that, prior to providing any information to any Person or participating in negotiations with any Person, Xoom shall have received an executed confidentiality agreement. Xoom will immediately cease and cause to be terminated any existing activities, discussions and negotiations conducted heretofore with respect to any Material Transaction Proposal. (b) From and after May 9, 1999 until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Board of Directors of Xoom shall not (i) approve or recommend or propose publicly to approve or recommend any Material Transaction Proposal, (ii) cause or agree to cause Xoom or any of its Subsidiaries to enter into any agreement (including, without limitation, any letter of intent or agreement in principle) related to a Material Transaction Proposal or (iii) prior to the Xoom Stockholder Approval, withdraw or modify, in a manner adverse to NBC, the approval or recommendation of the Board of Directors of Xoom for the adoption of the Xenon 2 Merger Agreement or vote in favor of 48 Xoom, as sole stockholder of Xenon 2, adopting the NMC Merger Agreement at the Xenon 2 Stockholder Meeting. Notwithstanding the foregoing, if the Board of Directors of Xoom receives a Takeover Proposal without having violated SECTION 5.5(A) hereof, the Board of Directors of Xoom may, prior to obtaining the Xoom Stockholder Approval, to the extent it determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, take any action specified in clauses (i), (ii) or (iii) above with respect to such Takeover Proposal, but in each case only (x) at a time that is at least five (5) business days after receipt by NBC of written notice from Xoom advising NBC that the Board of Directors of Xoom has resolved to take such action and (y) if Xoom simultaneously therewith terminates this Agreement pursuant to SECTION 9.1(G) hereof. Nothing contained in this Agreement shall prohibit Xoom or its board of directors from complying with Rules 14D-9 and 14e-2 under the Exchange Act with respect to any Takeover Proposal. (c) As used herein, "MATERIAL TRANSACTION PROPOSAL" means any inquiry, proposal or offer from any Person relating to (i) the direct or indirect acquisition or purchase of 20% or more of the assets (based on the fair market value thereof) of Xoom and its Subsidiaries, taken as a whole, or of 20% or more of any class of equity securities of Xoom or any of its Subsidiaries or any tender offer or exchange offer (including by Xoom or its Subsidiaries) that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Xoom or any of its Subsidiaries, or (ii) any merger, consolidation, business combination, sale of all or substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving Xoom or any of its Subsidiaries other than the Transactions contemplated by this Agreement; PROVIDED, HOWEVER, that in no event shall any merger, consolidation, sale or similar transaction involving only Xoom and one or more of its wholly-owned subsidiaries or involving only any two or more of such wholly-owned subsidiaries be deemed to be a Material Transaction Proposal if such transaction is not entered into in violation of the terms of this Agreement.. As used herein, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any Person relating to (A) any of the matters set forth in clause (i) of the definition of Material Transaction Proposal but replacing "20%" with "50%" each place "20%" is used in such definition, (B) a sale of all or substantially all of the assets of Xoom and its Subsidiaries or (C) a merger or consolidation of Xoom as a result of which the stockholders of Xoom immediately prior to such transaction would not beneficially own immediately after such transaction 50% or more of the resulting or surviving entity (or the parent thereof). (d) The parties acknowledge that there may be no adequate remedy at law for a breach of SECTION 5.5 and that money damages may not be an adequate remedy for breach of such Section. Therefore, the parties agree that NBC and Xoom each shall have the right, in addition to any other rights it may have, to injunctive relief and specific performance in the event of any breach of this SECTION 5.5. The remedy set forth in the preceding two sentences is cumulative and shall in no way limit any other remedy any party hereto has at law, in equity or pursuant hereto. V.6 NON-SOLICITATION OF EMPLOYEES. The parties hereto agree that beginning on May 9, 1999 and continuing until one year after the Effective Time, no party shall, directly or 49 indirectly, solicit for employment any person who is now employed by any of the other parties in an executive position, technical position or is otherwise considered a key employee; PROVIDED, HOWEVER, that a party shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by such party, (ii) responds to any general public advertisement placed by such party or (iii) has been terminated by the other party prior to commencement of employment discussions between such party and the employee. V.7 AMENDMENTS TO SCHEDULES. If no later than five business days prior to the Closing Date, Xoom, Xenon 2, NBC, SNAP or GE Investments Sub becomes aware of any fact or circumstance (whether or not it existed prior to May 9, 1999) which would make any representation, warranty, covenant or agreement of such party untrue, then such party shall be permitted to amend any Schedule to this Agreement so as to identify such fact or circumstance to the extent necessary to make such representation, warranty, covenant or agreement true and correct; PROVIDED that if any such amendment, individually or in the aggregate with all such other amendments, discloses facts and circumstances that constitute a Material Adverse Effect, then notwithstanding anything to the contrary in this Agreement, the other party (which shall be Xoom in the case of amendments by NBC, SNAP or GE Investments Sub and shall be NBC in the case of amendments by Xoom or Xenon 2) shall have the right to terminate this Agreement. Notwithstanding the foregoing, any change to a Schedule that refers solely to an item previously disclosed in the SEC Documents shall not be deemed to have a Material Adverse Effect on Xenon if such reference is to a specific section of a specific SEC Document. ARTICLE VI OTHER AGREEMENTS VI.1 REGISTRATION STATEMENT; PREPARATION OF PROXY STATEMENT. (a) As soon as practicable after the execution of this Agreement, Xoom shall prepare and cause to be filed with the SEC preliminary proxy materials (the "PROXY STATEMENT") for the solicitation of approval by the stockholders of Xoom of the Xenon 2 Merger Agreement and of Xoom, in its capacity as sole stockholder of Xenon 2, approving this Agreement, the Merger and the other transactions contemplated hereby and the other Implementing Agreements as may reasonably require approval of Xenon 2's stockholders. Xoom shall cause Xenon 2 to include the Proxy Statement as part of the prospectus to be included in the registration statement on Form S-4 (the "FORM S-4") that Xenon 2 is preparing and filing with respect to the shares of Class A Common Stock issuable pursuant to the transactions contemplated by the Xenon 2 Merger Agreement. Each of Xenon 2 and Xoom shall cause the Form S-4 and the Proxy Statement related thereto to comply with applicable law and the rules and regulations promulgated by the SEC, to respond promptly to any comments of the SEC or its staff and to have such registration statement declared effective under the Securities Act as promptly as practicable after it is filed with the SEC and Xoom shall use its best efforts to cause the proxy statement to be mailed to Xoom's stockholders as promptly as practicable after the registration statement is declared effective under the Securities Act. Each 50 of the parties hereto shall promptly furnish to the other party all information concerning itself, its stockholders and its Affiliates that may be required or reasonably requested in connection with any action contemplated by this SECTION 6.1. If any event relating to any party occurs, or if any party becomes aware of any information, that should be disclosed in an amendment or supplement to the Form S-4 or the Proxy Statement, then such party shall inform the other thereof and shall cooperate with each other in filing such amendment or supplement with the SEC and, if appropriate, in mailing such amendment or supplement to the stockholders of Xoom. The Proxy Statement shall include the recommendation of the Board of Directors of Xoom in favor of the adoption of this Agreement and the Xenon 2 Merger Agreement and the approval of the transactions contemplated hereby and thereby. (b) Prior to the Effective Time, Xoom shall cause Xenon 2 to use reasonable efforts to obtain all regulatory approvals needed to ensure that the Class A Common Stock to be issued in connection with the transactions contemplated the Xenon 2 Merger Agreement (i) will be registered or qualified under the "blue sky" laws of every jurisdiction of the United States in which any registered holder of the outstanding Xoom common stock who is receiving registered shares of Class A Common Stock has an address of record or be exempt from such registration; and (ii) will be approved for quotation at the Effective Time on Nasdaq. (c) Each of Xoom, Xenon 2 and NBC agrees with respect to the information to be supplied by such party that: (i) none of the information to be supplied by such party or its Affiliates for inclusion in the Form S-4 will, at the time the Form S-4 becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; (ii) none of the information to be supplied by such party or its Affiliates for inclusion in the Proxy Statement will, at the time the Proxy Statement is mailed to the stockholders of Xoom or as of the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and (iii) as to matters respecting such party, the Proxy Statement and the Form S-4 will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act, as applicable, and the rules and regulations promulgated by the SEC thereunder. VI.2 STOCKHOLDER MEETING. Xoom shall promptly after May 9, 1999 take all action necessary in accordance with applicable law and its certificate of incorporation and bylaws to duly call, hold and convene a meeting of Xoom's stockholders (the "XOOM STOCKHOLDER MEETING") and a meeting of Xoom 2's stockholder (the "XENON 2 STOCKHOLDER MEETING). Except as required by the SEC or applicable court order, Xoom shall not postpone or adjourn (other than for the absence of a quorum) the Xoom Stockholder Meeting or the Xenon 2 Stockholder Meeting without the consent of NBC. Notwithstanding anything in this Agreement to the contrary, Xenon 2 shall, and Xoom shall cause Xenon 2, to duly call, hold and convene the Xenon 2 Stockholder Meeting immediately after Xoom Stockholders Meeting, and Xoom, in its capacity as sole stockholder of Xenon 2, shall vote with respect to the adoption of this 51 Agreement at the Xenon 2 Stockholder Meeting as instructed by the votes of at least a majority of the Xoom Stockholders at the Xoom Stockholder Meeting. Each of Xenon 2 and Xoom shall not authorize or permit (i) the Xenon 2 Stockholder Meeting to occur at or after the effectiveness of the merger contemplated by the Xenon 2 Merger Agreement or (ii) the adoption of this Agreement by the stockholder of Xenon 2 to be effected by a written consent to action without a meeting. Neither NBC, Xenon 2 nor Xoom shall in any way challenge the validity, enforceability or effectiveness of the voting agreements or proxies entered into by certain stockholders of Xoom in connection with this Agreement or the Xenon 2 Merger Agreement and the transactions contemplated hereby and thereby. Xoom shall take all other action necessary or advisable to secure the Stockholder Approvals subject to the fiduciary duty set forth in SECTION 5.5. Without limiting the generality of the foregoing but subject to its rights to terminate the Agreement pursuant to SECTION 9.1(G), Xoom agrees that its obligations pursuant to this SECTION 6.2 shall not be affected by the commencement, public proposal, public disclosure or communication to Xoom of any Material Transaction Proposal. VI.3 PUBLIC STATEMENTS. Before any party or any Affiliate of such party shall release any information concerning this Agreement or the matters contemplated hereby which is intended for or may result in public dissemination thereof, such party shall cooperate with the other parties, shall furnish drafts of all documents or proposed oral statements to the other parties, provide the other parties the opportunity to review and comment upon any such documents or statements and shall not release or permit release of any such information without the consent of the other parties, except to the extent required by applicable law or the rules of any securities exchange or automated quotation system on which its securities or those of its Affiliate are traded. VI.4 REASONABLE COMMERCIAL EFFORTS. (a) Subject to the terms and conditions provided in this Agreement, each party shall use reasonable commercial efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated hereby, to obtain all necessary waivers, consents and approvals and to effect all necessary registrations and filings, including, without limitation, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby, and the filings and consents set forth on SCHEDULE 6.4 hereto (the "REQUIRED CONSENTS") and to remove any injunctions or other impediments or delays, legal or otherwise, in order to consummate and make effective the transactions contemplated by this Agreement for the purpose of securing to the parties hereto the benefits contemplated by this Agreement; PROVIDED that notwithstanding anything to the contrary in this Agreement, no party nor any of their Affiliates shall be required to make any disposition, including, without limitation, any disposition of, or any agreement to hold separate, any Subsidiary, asset or business, and no party hereto nor any of their Affiliates shall be required to make any payment of money nor shall any party or its Affiliates be required to comply with any condition or undertaking or take any action which, individually or in the aggregate, would materially adversely affect the economic benefits to such party of the transactions contemplated hereby and 52 the Implementing Agreements, taken as a whole or adversely affect any other business of such party or its Affiliates. (b) Each of the parties hereto shall execute and cause its Subsidiaries to execute on or prior to the Closing Date each Implementing Agreement to which it or they are a party on the terms set forth in the relevant Exhibits hereto. (c) Each of the parties hereto agrees, from time to time, to execute and deliver, or use reasonable commercial efforts to cause to be executed and delivered, such additional instruments, certificates or documents (including bills of sale and assignment and assumption agreements), and take all such actions, reasonably necessary to implement or effectuate the transactions contemplated by this Agreement. VI.5 NOTIFICATION OF CERTAIN MATTERS. Each party to this Agreement shall give prompt notice to each other party of (i) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of which is likely to cause any representation or warranty of any party contained in this Agreement to be untrue or inaccurate at or prior to the Effective Time and (ii) any failure of any party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; PROVIDED, HOWEVER, that the delivery of any notice pursuant to this SECTION 6.5 shall not limit or otherwise affect any remedies available to the parties receiving such notice. No disclosure by any party pursuant to this SECTION 6.5, however, shall be deemed to amend or supplement the disclosures set forth on the Schedules to ARTICLE IV or prevent or cure any misrepresentations, breach of warranty or breach of covenant. VI.6 XENON 2 DIRECTORS. (a) NBC shall have the right to select six persons to serve as members of the Board of Directors of Xenon 2 to be elected by the holders of the Class B Common Stock, voting separately as a class (such persons, or any replacement persons, the "NOMINEES"), and Xoom and Xenon 2 shall cause the Nominees to be appointed to the Board of Directors of Xenon 2 (to the extent the Nominees so consent) as of the Effective Time. (b) Xoom and Xenon 2 shall also cause to be appointed to the Board of Directors of Xenon 2 (to the extent they so consent) as of the Effective Time the current Chairman of the Board of Xoom, the four current outside directors of Xoom and an additional person designated by Xoom. (c) Xoom and Xenon 2 shall also cause to be appointed to the Board of Directors of Xenon 2 as of the Effective Time one additional person mutually agreed upon by NBC and Xoom who shall not be affiliated with either party. (d) Xenon 2 will cause the Surviving Corporation to indemnify each person who is now, or has been at any time prior to May 9, 1999, or who becomes prior to the Effective Time, a director or officer of NMC from and after the Effective Time (individually an "INDEMNIFIED PARTY" and collectively the "INDEMNIFIED PARTIES"), with respect to acts or omissions occurring prior to the Effective Time to the full extent provided as of May 9, 1999 53 under the certificate of incorporation, bylaws, other similar organizational documents of NMC or applicable law. The rights under this SECTION 6.6(D) are contingent upon the occurrence of, and will survive consummation of, the transactions contemplated hereby and are expressly intended to benefit each Indemnified Party each of whom shall have third party beneficiary rights hereunder. VI.7 EMPLOYEE MATTERS. (a) EMPLOYEES AND OFFERS OF EMPLOYMENT. Between May 9, 1999 and the Closing Date, Xenon 2 shall offer employment as of the Closing Date to each individual who is listed on SCHEDULE 6.7(A) and who, on the Closing Date, is employed by NBC or its Affiliates or who is absent from work by reason of vacation, sick leave, short-term disability or due to authorized leave of absence or military service; PROVIDED that for any such employee who, as of the Closing Date, is absent from work due to sick leave, short-term disability or due to authorized leave of absence or military service, such offer of employment shall be effective as of the date such employee is able to commence active employment with Xenon 2. Each offer of employment shall include salary, title and level of responsibility which are no less favorable in the aggregate than those in effect for such employee on May 9, 1999; PROVIDED that nothing shall prohibit Xenon 2 from terminating the employment of any Transferred Employee at any time. Such employees who accept and commence employment with Xenon 2 are herein collectively referred to as "TRANSFERRED EMPLOYEES". (b) EMPLOYEE BENEFIT PLANS (i) As of the Closing Date, except as otherwise expressly provided under the applicable employee benefit plan of NBC or its Affiliates (the "NBC PLANS") the Transferred Employees shall cease to accrue further benefits under NBC Plans and shall immediately commence participation in the Xenon 2 plans (which, except as otherwise provided in this Agreement, shall initially be the Xoom Plans) on a basis no less favorable than similarly situated employees of Xenon 2 or Xoom. Xenon 2 or Xoom shall cause each Xenon 2 Plan to treat the prior service of each Transferred Employee with NBC or its affiliates as service rendered to Xenon 2 or Xoom for purposes of eligibility, vesting and benefit accrual (but not for purposes of benefit accruals) under any defined benefit plan to the same extent such service was taken into consideration under comparable NBC Plans. (ii) NBC shall retain responsibility for and continue to pay all medical, life insurance, disability and other welfare plan expenses and benefits for each Transferred Employee with respect to claims incurred by such Employees or their covered dependents prior to the Closing Date. Expenses and benefits with respect to claims incurred by Transferred Employees or their covered dependents on or after the Closing Date shall be the responsibility of Xenon 2. For purposes of this paragraph, a claim is deemed incurred when the services that are the subject of the claim are performed; in the case of life insurance, when the death occurs, in the case of long-term disability benefits, when the disability occurs and, in the case of a hospital stay, when the employee first enters the hospital. 54 (iii) With respect to any welfare benefit plans (as defined in section 3(1) of ERISA) maintained by Xenon 2 or its Subsidiaries for the benefit of Transferred Employees and SNAP Employees on and after the Closing Date, Xenon 2 or its Subsidiaries shall use best efforts to (A) cause there to be waived any pre-existing condition limitations and (B) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, such employees with respect to similar plans maintained by NBC for their benefit immediately prior to the Closing Date. (iv) NBC shall retain all assets and liabilities and obligations under NBC Plans with respect to the Transferred Employees. Notwithstanding the foregoing, Xenon 2 shall be responsible, with respect to Transferred Employees, for all accrued bonuses for the year of Closing. (v) With respect to any accrued but unused vacation time to which any Transferred Employee is entitled pursuant to the vacation policy applicable to such Transferred Employee immediately prior to the Closing Date (the "VACATION POLICY"), Xenon 2 shall allow such Transferred Employee to use such accrued vacation; PROVIDED, HOWEVER, that if Xenon 2 deems it necessary to disallow such Transferred Employee from taking such accrued vacation, Xenon 2 shall be liable for and pay in cash to each such Transferred Employee an amount equal to such vacation time in accordance with terms of the Vacation Policy. VI.8 XENON 2 OPTIONS. (a) Prior to the Effective Time, with respect to each option to purchase shares of Xenon 2 into which options to purchase shares of Xoom (a "XOOM OPTION"), which were granted pursuant to the Xoom 1998 Stock Incentive Plan (the "XOOM OPTION PLAN") prior to May 9, 1999, were converted (the "CONVERTED XOOM PLAN OPTIONS"), Xenon 2 shall cause the Administrator (as defined in the Xoom Option Plan) to exercise its discretion to provide, and shall take any other necessary action to provide, that each Converted Xoom Plan Option shall vest and become exercisable with respect to all shares as to which such options would otherwise have vested within 12 months following the Effective Time. With respect to each option to purchase shares of Xenon 2 into which Xoom Options, which were not granted pursuant to the Xoom Option Plan prior to May 9, 1999, were converted (the "CONVERTED XOOM NON-PLAN OPTIONS"), Xenon 2 shall take any necessary action to provide that such Converted Xoom Non-Plan Options shall to the extent provided in the award agreement evidencing such option vest and become exercisable with respect to 75% of the then unvested portion of such Converted Xoom Non-Plan Option and any portion of a Converted Xoom Non-Plan Option which remains unexercised upon the occurrence of the Effective Time shall terminate upon the occurrence of the Effective Time. In addition, with respect to each option to purchase shares of Xenon 2 into which Xoom Options, which were granted after May 9, 1999, were converted (the "CONVERTED NEW XOOM OPTIONS"), Xenon 2 shall cause the Administrator to exercise its discretion to provide, and shall take any other necessary action to provide, that each option Converted New Xoom Option shall not immediately vest (but rather, shall vest in accordance with its stated vesting schedule) with respect to any of the shares subject thereto. Xenon 2 and Xoom acknowledge that the transaction contemplated hereby shall constitute a "Corporate 55 Transaction" for purposes of both the Xoom Option Plan and the Converted Xoom Non-Plan Options and the Administrator, the Board of Directors of Xoom and the Board of Directors of Xenon 2 shall take all necessary action to effect the foregoing. (b) In the event that any Xoom employee incurs an excise tax under Section 4999 of the Code as a result of the accelerated vesting of the Xoom Options pursuant to SECTION 6.8(A), Xenon 2 shall make available to such employee a loan (the "TAX LOAN") in an amount sufficient to pay such excise tax. The determination of whether any such excise tax will be payable and the amount of such excise tax will be made by Xoom 2's independent auditors. The Tax Loan will (i) have a term of two years, and (ii) bear interest at the lowest permissible rate without imputation of income, compounded annually and (iii) to the extent not previously forgiven become immediately due and payable upon the termination of such employee's employment with Xenon 2 and its Affiliates for cause or due to such employee's voluntary resignation. The Tax Loan, will be forgiven with respect to 1/24 of the initial principal amount of the Tax Loan (together with accrued interest thereon) on the last day of each 1 month anniversary of the Effective Time if the employee has remained continually employed with Xenon 2 and its Affiliates through such date or if such employee's employment with Xenon 2 and its Affiliates is terminated without cause or due to the employee's death or disability. VI.9 SNAP INDEBTEDNESS. Immediately following Closing, Xenon 2 will repay and terminate the commitments with respect to the indebtedness for money borrowed (including all interest, fees and other amounts payable in respect thereof) set forth on SCHEDULE 6.9 and Xenon 2 shall use its best efforts to cause the guarantee of such indebtedness by General Electric Company to be fully released. Neither SNAP nor NBC or any of its Subsidiaries shall be required to repay prior to Closing any indebtedness of SNAP, including any incurred from and after May 9, 1999 in accordance with the terms of this Agreement. VI.10 ORGANIZATION OF CNBC.COM. NBC shall organize an entity and contribute the assets, properties and other rights set forth on SCHEDULE 6.10 to such entity on or before the Closing Date. VI.11 TAX COOPERATION AND CONSISTENT REPORTING. (a) Xenon 2 and NBC agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Contributed Assets as is reasonably necessary for the filing of all Tax Returns, and making of any election related to Taxes, the preparation for any audit by any Tax Authority, and the prosecution or defense of any claim, suit or proceeding relating to any Tax Return. Xenon 2 and NBC will cooperate with each other in the conduct of any audit or other proceeding related to Taxes and all other Tax matters relating to the Contributed Assets, and each will execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this SECTION 6.11. 56 (b) Unless there has been a Final Determination to the contrary, NBC, Xenon 2 and Xoom covenant and agree, for all Tax purposes including all Tax Returns and any Tax controversies to (and to cause any Affiliate or successor to their assets or business to) take each of the positions set forth below (and not to take any positions inconsistent therewith): (i) The transfer of the Contributed Assets pursuant to the Agreement will qualify under Section 351(a) of the Code. (ii) None of the consideration received for the Contributed Assets pursuant to the Agreement will be treated as Other Property or Money. (iii) None of the Class A Common Stock or Class B Common Stock issued to NBC or CNET pursuant to the terms of the Agreement will be paid or issued for services. (iv) The tax basis of each Contributed Asset to be received by Xenon 2 will be the same as the tax basis of such asset in the hands of the transferor increased by the amount of any gain recognized by the transferor on the transfer of such asset. (v) The holding period of each Contributed Asset will include the period during which such asset was held by the transferor. (vi) Neither Xenon 2, Xoom, any affiliate thereof, nor any successor to their assets or businesses will be entitled to claim any deduction in respect of any assumed Liability to the extent previously deducted by the transferor. (c) Xenon 2 represents, covenants and agrees that (A) it has no plan or intention to (i) issue additional shares of stock after the Merger, or take any other action, that would result in NBC, NBC Multimedia, CNBC, CNET and the Xoom shareholders losing control of Xenon 2, (ii) liquidate or merge Xenon 2; (iii) sell or otherwise dispose of any of its assets (or of any of the assets acquired from NBC Multimedia), except for dispositions made in the ordinary course of business, transfers permitted under Section 368(a)(2)(C) of the Code, or transfers prescribed by Section 1.368-1(d) that will not affect Xoom 2's satisfaction of the "continuity of business enterprise" requirement under Section 368 of the Code for purposes of qualifying the Merger as a "reorganization" under said section, and (iv) reacquire any of the shares of its stock issued pursuant to this Agreement, and (B) the historic business of NBC Multimedia will be continued or a significant portion of NBC Multimedia's historic business assets will be used in a business. (d) (i) NBC and Xenon 2 agree to report to the other any communication from or with the Internal Revenue Service which relates in any way to the characterization of the transactions contemplated by the Agreement. Notwithstanding any such communication, Xenon 2 and Xoom covenant and agree to (and to cause any Affiliate or successor to their assets or business to) continue to take each of the positions specified in SECTION 6.11(B) for all Tax purposes (unless there has been a Final Determination contrary to such position). 57 (ii) Without limiting the generality of SECTION 6.11(D)(I), (A) NBC will file with its federal income tax return for the taxable year in which the Agreement is consummated (which tax return shall be timely filed) the information required by Treas. Reg ss. 1.351-3(a), and will deliver a copy of that statement to Xenon 2 within ten days thereafter, and (B) Xenon 2 will file with its federal income tax return for the taxable year in which the Agreement is consummated (which tax return shall be timely filed) the information required by Treas. Reg ss. 1.351-3(b), and will deliver a copy of that statement to NBC within ten days thereafter. Within ninety days after the Closing Date, NBC will deliver to Xenon 2 all of the cost and other basis information relating to the Contributed Assets and assumed Liabilities for federal income tax purposes reasonably required for Xenon 2 to prepare the statement required by Treas. Reg. ss. 1.351-3(b)(2). Such information will be delivered in the form normally maintained by NBC and will include reasonably complete data relating to the tax basis, year of acquisition, depreciable life, and amount and method of depreciation of tangible and intangible property. NBC and Xenon 2 also will maintain such records as are required by Treas. Reg. ss. 1.351-3(c). (iii) Without limiting the generality of SECTION 6.11(D)(I), (A) Xenon 2 and NBC Multimedia will comply with the record-keeping and information filing requirements of Section 1.368-3 of the Treasury Regulations with respect to the Merger, and (B) Xenon 2 will file with its federal income tax return for the taxable year in which the Agreement is consummated (which tax return shall be timely filed) the information required by Treasury Regulations Section 1.351-3(b) and maintain such records as are required by Treasury Regulations Section 1.351-3(c) with respect to the Merger. VI.12 TAX BENEFIT PAYMENTS. (a) If a Final Determination is made contrary to any of the positions described in 6.11(b)(i), (ii), or (iii), then (in addition to any other remedies which may be available to NBC but without duplication thereof) Xenon 2 will pay to NBC for each Post-Closing Tax Period an amount equal to the excess of (A) the liability for federal, state and local Taxes to which Xenon 2, Xoom or any other Affiliates or any successor to their assets or businesses (collectively, the "TAXPAYER") would have been subject for all Post-Closing Tax Periods in each relevant jurisdiction had the positions described in SECTION 6.11(B)(I), SECTION 6.11(B)(II) and SECTION 6.11(B)(III) been sustained (and had Xenon 2 not been required to make any payments pursuant to this SECTION 6.12), over (B) the Taxpayer's actual liability for such Taxes for such periods. Such payment will be due (subject to a ten business-day grace period) when, as, and to the extent the Taxpayer derives an actual benefit (in the form of any refund, reduction in Tax liability, or otherwise) as the result of such excess. If any payment required under this SECTION 6.12(A) for any Post-Closing Tax Period is not made on or before the due date (without extensions) of the return of such period, then such payment will be made together with interest at the rate per annum determined from time to time under Section 6621(a)(2) of the Code compounded daily for the period from such due date to the date on which the payment is actually made. 58 (b) In addition, Xenon 2 will pay to NBC, no later than ten business days after each date on which the Taxpayer receives a refund of federal, state or local Taxes for a Pre-Closing Tax Period, the excess of such refunds over such refunds to which the Taxpayer would have been entitled had the positions described in SECTION 6.11(B) been sustained (and had Xenon 2 not been required to make any payments under this SECTION 6.12). If any payment required under this SECTION 6.12(B) is not made on or before the date such payment is due, then such payment will be made together with interest at the rate per annum determined from time to time under Section 6621(a)(2) of the Code compounded daily for the period from the date such payment was due to the date on which such payment is actually made. (c) In the event of any adjustment to the Taxpayer's liability for federal, state or local Taxes or entitlement to a refund, as a result of audit, carryover, or otherwise, the amounts previously payable under this SECTION 6.12 will be appropriately adjusted and Xenon 2 or NBC, as the case may be, will pay to the other the amount, required as a result of such adjustment, together with interest at the rate per annum determined from time to time under Section 6621(a)(2) of the Code compounded daily for the period from the original payment date affected by the adjustment to the date on which the payment is made. At the time of any payment under this SECTION 6.12 (or at the request of NBC if Xenon 2 has determined that no payment is due), Xenon 2 will submit a schedule showing in reasonable detail its calculation of the payment to be made (or the basis for its determination that no payment is due). Any dispute concerning the calculation of payments due under this SECTION 6.12 will be resolved by the Independent Accountants. (d) Any payment to NBC under this SECTION 6.12 will be allocated between principal and interest for purposes of Section 483, Section 1273, and any other relevant provision of the Code by using as a discount rate the rate per annum determined from time to time under Section 6621(a)(2) of the Code compounded daily for the period from the date of Closing to the date on which the payment is made. The portion of any such payment created as principal will be treated as additional exchange consideration. Any payment to Xenon 2 under this SECTION 6.12 (other than interest) will be treated as a reduction of the exchange consideration. (e) NBC will pay (i) any fees or other amounts due to the Independent Accountants in respect of the resolution of any dispute pursuant to SECTION 6.12(C), and (ii) all reasonable costs (including the reasonable internal costs of Xenon 2 or any Affiliate or successor thereto) incurred by Xenon 2 (or by such Affiliate or successor) to comply with the provisions of this SECTION 6.12. VI.13 XOOM CASH. As long as the Effective Time occurs on or prior to September 30, 1999, Xoom covenants and agrees immediately prior to the Effective Time that it will have cash, net of outstanding indebtedness of Xoom, in an amount at least equal to the sum of $230 million less any cash used in connection with acquisitions made in accordance with the terms of SECTION 5.1; PROVIDED that if the Effective Time occurs after that date, the foregoing amount shall also be less $7.5 million for each month after September 30, 1999 and prior to the Effective Time. 59 VI.14 TRANSITION SERVICES. Promptly after May 9, 1999, NBC, Xoom and Xenon 2 shall use their good faith efforts to negotiate a transition services agreement pursuant to which NBC shall provide certain administrative and support services and facilities relating to the NBC Multimedia Businesses to Xenon 2 for a transition period after the Effective Time on terms mutually acceptable to the parties. VI.15 CONVERSION OF NBC'S CLASS A COMMON STOCK. On the Closing Date, any Class A Common Stock purchased pursuant to the Stock Purchase Agreement, dated as of June 11, 1999, between Xoom and NBC held by NBC or its Affiliates will be automatically converted into Class B Common Stock pursuant to the certificate of incorporation attached hereto as Exhibit 3.5. As soon as reasonably practicable after the Effective Time, NBC or its Affiliates, as the case may be, shall deliver any certificates representing such Class A Common Stock to Xenon 2 and NBC or its Affiliates, as the case may be, shall be entitled to receive in exchange a certificate representing the same number of shares of Class B Common Stock, which certificate shall, until such time as the same is no longer required hereunder or under the applicable requirements of the Securities Act or applicable state securities laws, bear the legend set forth in Section 3.8(d). ARTICLE VII CONDITIONS TO CLOSING 7.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY. The respective obligations of each party to this Agreement to consummate this Agreement and the transactions contemplated hereby shall be subject to the satisfaction or waiver by the appropriate party of each of the following conditions on or prior to the Closing Date: (a) NO INJUNCTIONS OR RESTRAINTS. At the Closing Date, there shall be (i) no injunction, restraining order or other decree of any nature of any court of competent jurisdiction or other Governmental Authority that is in effect that restrains or prohibits the consummation of any of the transactions contemplated hereby, and (ii) no action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated hereby, which makes the consummation of this Agreement and the transactions herein illegal; PROVIDED, HOWEVER, that the parties hereto shall use their reasonable commercial efforts to have such injunction, order, decree, claim, action, suit, statute, rule or regulation vacated or declared inapplicable as expeditiously as practicable. (b) REGULATORY AUTHORIZATIONS. All orders, consents and approvals of any Governmental Authorities legally required for the consummation of the transactions contemplated by this Agreement, including the Required Consents, shall have been obtained, and all waiting periods applicable under the HSR Act and other applicable antitrust, merger control or competition laws or regulations shall have expired or been terminated, except those for which failure to obtain such consents and approvals would not, individually and in the aggregate, have a Material Adverse Effect. 60 (c) STOCKHOLDER APPROVALS. The Stockholder Approvals shall have been obtained. (d) XENON 2 MERGER AGREEMENT. The transactions contemplated by the Xenon 2 Merger Agreement to occur at the closing thereunder shall have been consummated as set forth therein. 7.2 CONDITIONS PRECEDENT TO OBLIGATION OF NBC. The obligation of NBC to consummate this Agreement and the transactions contemplated hereby shall be subject to the satisfaction of each of the following conditions, or by the waiver of such condition by NBC, on or prior to the Closing Date: (a) ACCURACY OF REPRESENTATIONS AND WARRANTIES OF XOOM AND XENON 2. The representations and warranties of Xoom contained in this Agreement shall be true and correct in all material respects, in each case on and as of May 9, 1999 and on and as of the Closing Date as though made on and as of such time, except to the extent such representations and warranties by their terms speak as of a specified date, in which case they shall be true and correct in all material respects as of such date; and NBC shall have received from Xoom a certificate to such effect dated as of the Closing Date signed by an officer thereof. (b) COVENANTS OF XOOM. Xoom shall have complied in all material respects with all covenants contained in this Agreement to be performed by it on or prior to the Closing; and NBC shall have received from Xoom a certificate to such effect dated as of the Closing Date signed by an officer thereof. (c) IMPLEMENTING AND OTHER AGREEMENTS. Each of CNET, Xenon 2 and Xoom shall have entered into, or shall have caused their respective Subsidiaries to have entered into, each of the Implementing Agreements to which such Person is a party. (d) DIRECTORS AND OFFICERS OF XENON 2. The officers and directors of Xenon 2 shall, as of the Effective Time, consist of the Persons set forth on SCHEDULE 3.7, who shall have been elected or appointed in accordance with SECTION 6.6 hereof. VII.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF XENON 2. The obligation of Xenon 2 to consummate this Agreement and the transactions contemplated hereby shall be subject to the satisfaction of each of the following conditions, or the waiver of such condition by NBC, on or prior to the Closing Date: (a) ACCURACY OF REPRESENTATIONS AND WARRANTIES OF NBC. The representations and warranties of NBC contained in this Agreement shall be true and correct in all material respects, in each case on and as of May 9, 1999 and on and as of the Closing Date as though made on and as of such time, except to the extent such representations and warranties by their terms speak as of a specified date, in which case they shall be true and correct in all material 61 respects as of such date; and Xenon 2 shall have received from NBC a certificate to such effect with respect to such party dated as of the Closing Date signed by an officer thereof. (b) COVENANTS OF NBC. NBC and its Subsidiaries shall have complied in all material respects with all covenants contained in this Agreement to be performed on or prior to the Closing; and Xenon 2 shall have received from NBC a certificate to such effect dated as of the Closing Date signed by an officer thereof. (c) IMPLEMENTING AND OTHER AGREEMENTS. NBC shall have entered into, or shall have caused its Subsidiaries to have entered into, each of the Implementing Agreements to which such Person is a party. ARTICLE VIII INDEMNIFICATION VIII.1 INDEMNIFICATION BY XENON 2. From and after the Closing, Xenon 2 shall indemnify and hold harmless NBC and its Affiliates and each of its directors, officers, employees, agents, heirs, executors, successors and assigns from and against any and all Losses and Expenses suffered or incurred by any such indemnified Person arising from, relating to or otherwise in respect of any breach of the covenant of Xoom contained in SECTION 6.13 of this Agreement. VIII.2 INDEMNIFICATION BY NBC. From and after the Closing Date, NBC shall indemnify and hold harmless Xenon 2 and its Affiliates and each of the foregoing's respective directors, officers, employees and agents, heirs, executors, successors and assigns of any of the foregoing from and against any and all Losses and Expenses suffered or incurred by any such indemnified Person arising from, relating to or otherwise in respect of any breach of the representations and warranties set forth in SECTION 4.1(C)(III) and SECTION 4.1(V) of this Agreement. VIII.3 CLAIMS PROCEDURE. (a) If a claim by a third party is made against an indemnified Person hereunder, and if such indemnified Person intends to seek indemnity with respect thereto under this Article, such indemnified Person shall promptly notify the indemnifying Person in writing of such claims setting forth such claims in reasonable detail (the "CLAIM NOTICE"), PROVIDED that failure of such indemnified Person to give prompt notice as provided herein shall not relieve the indemnifying Person of any of its obligations hereunder, except to the extent that the indemnifying Person is materially prejudiced by such failure. The indemnifying Person shall have twenty (20) days after receipt of such notice (the "NOTICE PERIOD") to undertake, through counsel of its own choosing, subject to the reasonable approval of such indemnified Person, and at its own expense, the settlement or defense thereof, and the indemnified Person shall cooperate with it in connection therewith; PROVIDED, HOWEVER, that the indemnified Person may participate in such settlement or defense through counsel chosen by such indemnified Person, PROVIDED that the fees and expenses of such counsel shall be borne by such indemnified Person. If the 62 indemnifying Person shall assume the defense of a claim, it shall not settle such claim without the prior written consent of the indemnified Person, unless (i) such settlement includes as an unconditional term thereof the giving by the claimant of a release of the indemnified Person from all Liability with respect to such claim or (ii) such settlement does not involve the imposition of equitable remedies or the imposition of any material obligations on such indemnified Person other than financial obligations for which such indemnified party will be indemnified hereunder. If the indemnifying Person shall assume the defense of a claim, the fees of any separate counsel retained by the indemnified Person shall be borne by such indemnified Person unless there exists a material conflict between them as to their respective legal defenses (other than one that is of a monetary nature), in which case the indemnified Person shall be entitled to retain one law firm (plus any necessary local counsel) as its separate counsel, the reasonable fees and expenses of which shall be reimbursed by the indemnifying Person. If the indemnifying Person does not notify the indemnified Person within twenty (20) days after the receipt of the indemnified Person's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, the indemnified Person shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agree ment. (b) OTHER CLAIMS. In the event the indemnified party should have a claim against the indemnifying party hereunder which does not involve a claim or demand being asserted against or sought to be collected from it by a third party, the indemnified party shall promptly send a Claim Notice with respect to such claim to the indemnifying party. If the indemnifying party does not notify the indemnified party within the Notice Period that they dispute such claim, the amount of such claim shall be conclusively deemed a liability of the indemnifying party hereunder. VIII.4 EXCLUSIVE REMEDY. From and after the Closing, the indemnification obligations under this ARTICLE VIII and the obligations of NBC in SECTION 9.2 constitute the sole and exclusive remedy of each party for any breach of, or inaccuracy in, any representation or warranty of another party contained in this Agreement or in any certificate delivered pursuant hereto or any breach of any covenant in this Agreement in each case to the extent they survive the Closing. ARTICLE IX TERMINATION IX.1 TERMINATION EVENTS. Without prejudice to other remedies which may be available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time: (a) by mutual written consent of NBC and Xenon 2; 63 (b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, PROVIDED that the party terminating this Agreement shall not be in material default or breach hereunder and PROVIDED, FURTHER, that the right to terminate this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date; (c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, PROVIDED that the party seeking to terminate this Agreement under this clause (c) is not then in material breach of this Agreement and PROVIDED, FURTHER, that the right to terminate this Agreement under this clause (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling; (d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained; (e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby; (f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so; (g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under SECTION 5.5 hereof, a bona fide Takeover Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or 64 (h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party. (i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement. IX.2 EFFECT OF TERMINATION. In the event of any termination of the Agreement as provided in SECTION 9.1 hereto, this Agreement shall forthwith become wholly void and of no further force and effect (except SECTION 5.6, SECTION 6.3, SECTION 9.2 and ARTICLE X hereof) and there shall be no liability on the part of any parties hereto or their respective officers or directors, except as provided in such sections and article. Notwithstanding the foregoing, no party hereto shall be relieved from liability for any willful breach of this Agreement; PROVIDED, HOWEVER, that if NBC wilfully fails to close the transactions contemplated by this Agreement after all of the conditions to closing set forth in SECTION 7.1 and SECTION 7.2 have been satisfied, within 2 business days of the termination of this Agreement by Xenon 2, NBC shall pay to Xenon 2 $475 million, which amount shall constitute the sole and exclusive remedy of Xoom and Xenon 2 for such breach by NBC. ARTICLE X MISCELLANEOUS AGREEMENTS OF THE PARTIES X.1 NOTICES. Any notice in connection with this Agreement shall be in writing and shall be delivered by air courier or by facsimile at the addresses or facsimile numbers given below. If notice is given by: (a) air courier, notice shall be deemed given when recorded on the records of the air courier as received by the receiving party; or (b) facsimile, notice shall be deemed given upon transmission, if on a business day and during business hours in the country of receipt; otherwise, notice shall be deemed to have been given at 9:00 A.M. on the next Business Day in the country of receipt. If to NBC, NMC or GE Investments Sub: National Broadcasting Company, Inc. 30 Rockefeller Plaza New York, New York 10012 Attn.: Tom Rogers Facsimile: (212) 664-3914 with a copy to: 65 Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 Attn.: Richard Capelouto Facsimile: (212) 455-2502 If to Xoom or Xenon 2: Xenon 2, Inc. 300 Montgomery Street Suite 300 San Francisco, California 94104 Attn.: Chris Kitze Facsimile: (415) 288-2580 with a copy to: Morrison & Foerster LLP 425 Market Street San Francisco, California 94105 Attn.: Bruce Alan Mann Facsimile: (415) 268-7522 with a copy to: Morrison & Foerster LLP 1290 Avenue of the Americas New York, New York 10104 Attn.: Allen L. Weingarten Facsimile: (212) 468-7900 or to such other address as any such party shall designate by written notice to the other parties hereto. X.2 INTEGRATION; AMENDMENTS. This Agreement (including the Schedules and Exhibits hereto) contains the entire agreement and understanding of the parties with regard to the matters contained herein and supercedes any prior written or oral agreement with respect to the subject matter hereto. This Agreement may not be amended or modified except in a writing signed by all parties hereto. X.3. WAIVER. No waiver by any of the parties hereto of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the party so waiving. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to 66 constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants, or agreements contained herein, and in any documents delivered or to be delivered pursuant to this Agreement and in connection with the Closing hereunder. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. X.4. NO ASSIGNMENT; SUCCESSORS AND ASSIGNS. The parties' respective rights and obligations hereunder may not be assigned, transferred, pledged, or encumbered, in any manner, direct or indirect, contingent or otherwise, in whole or in part, voluntarily or by operation of law, without the prior written consent of the other parties, PROVIDED that NBC may assign, in whole or in part, any of its rights and obligations hereunder and under the Implementing Agreements to one or more of its Affiliates without the consent of the other parties hereto, but NBC will remain liable for its obligations hereunder and under each of the Implementing Agreements to which it is a party. Subject to the preceding sentence, this Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. X.5. EXPENSES. Except as set forth in this Agreement, if the transactions contemplated by this Agreement are consummated, all legal and other costs and expenses (including fees and expenses of any financial advisors, accountants or other professional advisors) incurred by Xoom, SNAP or NBC in connection with this Agreement and the transactions contemplated hereby shall be paid or reimbursed by Xenon 2. If the transactions contemplated by this Agreement are not consummated, all legal and other costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs. X.6. SEVERABILITY. If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect, and the parties hereto shall negotiate in good faith to replace such illegal, void or unenforceable provision with a provision that corresponds as closely as possible to the intentions of the parties as expressed by such illegal, void or unenforceable provision. X.7 SECTION HEADINGS; TABLE OF CONTENTS. The section headings contained in this Agreement and the table of contents to this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. X.8. THIRD PARTIES. This Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third party beneficiary hereto, except as set forth in SECTION 6.6(D). X.9 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND PERFORMED WITHIN SUCH STATE (EXCEPT TO THE EXTENT THAT THE DGCL APPLIES TO THE MERGER), AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE 67 JURISDICTION OF ANY STATE OR U.S. FEDERAL COURT SITTING WITHIN THE COUNTY OF NEW YORK. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. X.10 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy to which they are entitled at law or in equity. X.11 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. X.12 AMENDMENT AND RESTATEMENT. (a) This Agreement amends certain provisions of the Existing Merger Agreement and restates the terms of the Existing Merger Agreement in their entirety so as to reflect and give effect to such amendments. Except as provided in SECTION 10.12(B), all amendments to the Existing Merger Agreement effected by this Agreement, and all other covenants, agreements, terms and provisions of this Agreement, shall have effect from the date of the Existing Merger Agreement. (b) Each of the representations and warranties made in SECTIONS 4.1, 4.2 and 4.3 shall be deemed (i) to be made on the date of the Existing Merger Agreement (other than the representations and warranties in respect of this Agreement that are contained in SECTIONS 4.1(B) and 4.3(B) which are made as of the date hereof) and as of the Closing Date and (ii) not made on the date hereof (except as set forth in the parenthetical in clause (i) of this SECTION 10.12(B)). 68 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written. NATIONAL BROADCASTING COMPANY, INC. By: ------------------------------ Name: Title: GE INVESTMENTS SUBSIDIARY, INC. By: ------------------------------ Name: Title: NEON MEDIA CORPORATION By: ------------------------------ Name: Title: XENON 2, INC. By: ------------------------------ Name: Title: XOOM.COM, INC. By: ------------------------------ Name: Title: EX-3 4 EXHIBIT 3 Exhibit 3 EXECUTION COPY FIRST AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT AND PLAN OF CONTRIBUTION, INVESTMENT AND MERGER This First Amendment to Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated as of October 20, 1999 (hereinafter, "Amendment No. 1"), among National Broadcasting Company, Inc., a Delaware corporation ("NBC"), GE Investments Subsidiary, Inc., a Delaware corporation, Neon Media Corporation, a Delaware Corporation, NBC Internet, Inc., a Delaware corporation ("NBCi," referred to as "Xenon 2" in the Original Contribution Agreement hereinafter identified), and XOOM.com, Inc., a Delaware corporation ("Xoom") W I T N E S S E T H: WHEREAS, the parties hereto have previously entered into that certain Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger dated as of July 8, 1999 (the "Original Contribution Agreement"); and WHEREAS, the parties now wish to amend the Original Contribution Agreement as provided below; NOW THEREFORE, the Original Contribution Agreement is amended in the following respects: 1. Section 5.2(b) of the Original Contribution Agreement is amended in its entirety to provide as follows: "(b) issue, purchase or redeem, or authorize or propose the issuance, purchase or redemption of, or make any distribution with respect to, any equity interests of SNAP or any class of securities convertible into, or rights, warrants or options to acquire, any such equity interests or other convertible securities, other than (i) pursuant to employee options outstanding on the date hereof or issued in accordance herewith, (ii) SNAP Options issued pursuant to commitments to issue SNAP Options that were included in job offers outstanding as of May 9, 1999, as identified on SCHEDULE 4.1(t) as amended and (iii) additional options that, when added to SNAP Options previously outstanding, do not exceed options for units equal in number to 17% of the units of SNAP." 2. SCHEDULE 3.7 to the Original Contribution Agreement is amended by replacing the reference to "Thomas Rogers" under the item "NBC Directors" with a reference to "Scott M. Sassa". 3. SCHEDULE 4.2(t) to the Original Contribution Agreement is amended by the addition thereto of the items listed on SCHEDULE 4.2(t)-2 hereto. 4. SCHEDULE 6.9 to the Original Contribution Agreement is amended by deleting the reference to "August 25, 1998" and replacing it with "September 14, 1999," and the parties acknowledge and agree that NBCi shall, accordingly, be obligated pursuant to Section 6.9 of the Contribution Agreement to repay and terminate the indebtedness represented by that certain Credit Agreement dated September 14, 1999 between SNAP and Bank of America National Trust and Savings Association, and use its best efforts to cause the guarantee of such indebtedness by General Electric Company to be fully released immediately following the Closing. 5. EXHIBIT A to the Original Contribution Agreement is amended by increasing the value of the Spots to be provided by NBC to Xenon 2 to $405 million and by establishing that the aggregate value of the Spots to be provided in the fourth quarter of 1999 shall be no less than $45 million. 6. In all other respects, the Original Contribution Agreement is unchanged and shall remain in full force and effect. 7. GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE TO BE PERFORMED WITHIN SUCH STATE. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.] 8. Article X of the Original Merger Agreement shall apply MUTATIS MUTANDIS to this Amendment No. 1. IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be duly executed as of the date first above written. NATIONAL BROADCASTING COMPANY, INC. BY: /s/ Martin Yudkovitz -------------------- Name: Martin Yudkovitz Title: President, NBC Interactive GE INVESTMENTS SUBSIDIARY, INC. BY: /s/ Robert E. Healing --------------------- Name: Robert E. Healing Title: Vice President NEON MEDIA CORPORATION BY: /s/ Martin Yudkovitz -------------------- Name: Martin Yudkovitz Title: President, NBC Interactive NBC INTERNET, INC. (formerly, Xenon 2, Inc.) BY: /s/ John Harbottle ------------------ Name: John Harbottle Title: Chief Financial Officer and Executive Vice President XOOM.COM, INC. BY: /s/ John Harbottle ------------------ Name: John Harbottle Title: Chief Financial Officer and Executive Vice President EX-4 5 EXHIBIT 4 Exhibit 4 NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS NOTE MAY BE MADE EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) IF MAKER HAS BEEN FURNISHED WITH AN OPINION REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO MAKER OF COUNSEL REASONABLY SATISFACTORY TO MAKER THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER. ISSUE PRICE: $759.918 PER $1,000 OF PRINCIPAL AMOUNT TOTAL ISSUE PRICE: $30,000,000 ORIGINAL ISSUE DISCOUNT: $240.082 PER $1,000 OF PRINCIPAL AMOUNT TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT: $9,477,953 YIELD TO MATURITY: 4.0% per annum ISSUE DATE: NOVEMBER 30, 1999 SUBORDINATED ZERO COUPON CONVERTIBLE DEBENTURE due 2006 representing up to $39,477,953 No. 1. November 30, 1999 1. PAYMENT OF PRINCIPAL AND ORIGINAL ISSUE DISCOUNT. FOR VALUE RECEIVED, the undersigned, NBC Internet, Inc., a Delaware corporation ("Maker"), hereby promises to pay NBC Multimedia, Inc. (or an affiliate thereof) or the subsequent registered owner of this Note ("Payee"), in the manner hereinafter provided, the principal amount of Thirty Nine Million Four Hundred Seventy Seven Thousand Nine Hundred Fifty-Three Dollars ($39,477,953) on November 30, 2006 (the "Stated Maturity Date"). The principal of this Note shall not bear interest except in the case of a default in the payment of principal upon acceleration, upon redemption or at the Stated Maturity Date and in such case the amount payable hereon, in lieu of the principal amount due at the Stated Maturity Date hereof shall be the amount (the "Amortized Face Amount") equal to (a) the Issue Price (as defined below) plus (b) that portion of the difference between the Issue Price and the principal amount that has accrued at the Yield to Maturity (as defined below) (calculated on an annual bond equivalent basis from November 30, 1999) at the date as of which the Amortized Face Amount is calculated, which shall accrue from the date of such default in payment to the date payment on such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the Yield to Maturity, which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand. As used herein, the term "Issue Price" 2 means the principal amount of this Note less the Original Issue Discount stated on the face hereof, and the term "Yield to Maturity" means the Yield to Maturity stated on the face hereof for the period from the Original Issue Date stated on the face hereof to the Stated Maturity Date. This Note is issued pursuant to the Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated as of July 8, 1999 (the "Merger Agreement"), among National Broadcasting Company, Inc., Payee, Neon Media Corporation, Maker and Xoom.com, Inc. Subject to the right of Payee to convert this Note pursuant to Section 2, this Note may be redeemed in whole at any time after November 30, 2004 at the option of Maker without penalty or premium, at a redemption price equal to the Amortized Face Amount, upon at least thirty (30) days prior written notice thereof to Payee. Maker may pay the redemption price in cash, Common Stock (as defined below) or both, PROVIDED that in any event the issuance of 568,118 shares of Common Stock shall be deemed to be full satisfaction of the redemption price. Any Common Stock issued to pay the redemption price shall be valued based on the average closing price for the 30-day period ending the day prior to the date of redemption. All payments to be made hereunder shall be made to Payee at 30 Rockefeller Plaza, New York, New York 10012 (Attention: Chief Financial Officer). 2. CONVERSION RIGHT. (a) CONVERSION. Payee has the right, at its option, at any time after November 30, 2000 [the first anniversary of the Closing], to convert all (but not less than all) of the principal of this Note into an aggregate of 471,031 fully paid and nonassessable shares (as adjusted pursuant to Section 2(b), the "Conversion Shares") of Class B common stock, par value $.0001 per share, of Maker ("Common Stock") upon surrender of this Note at the office of Maker. Upon the receipt of this Note, duly endorsed, and a signed notice from Payee that Payee is irrevocably exercising its conversion right pursuant to this Section 2(a), Maker shall promptly deliver the Conversion Shares registered in the name of Payee. (b) ADJUSTMENTS. The conversion rights set forth are subject to adjustment as provided below. (i) STOCK SPLITS, STOCK DIVIDENDS AND COMBINATIONS. If Maker shall at any time subdivide the outstanding shares of Common Stock or shall issue a stock dividend with respect to the Common Stock, then the number of shares of Common Stock for which this Note is convertible immediately prior to that subdivision shall be proportionately increased, and if Maker shall at any time combine the outstanding shares of Common Stock, then the number of shares of Common Stock for which this Note is exercisable immediately prior to that combination shall be proportionately reduced. Any adjustment under this Section 3 2(b)(i) shall become effective at the close of business on the date the subdivision, stock dividend or combination becomes effective. (ii) RECLASSIFICATION, EXCHANGE, SUBSTITUTION AND IN-KIND DISTRIBUTION. If the Common Stock issuable on conversion of this Note shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than a subdivision or combination of shares provided for above) or upon the payment of a dividend in cash, securities or property other than Common Stock, then Payee shall, upon conversion of this Note, be entitled to receive, in lieu of the Common Stock that Payee would have become entitled to receive but for such change, that number of shares of such other class or classes of stock that is equivalent to the number of shares of Common Stock that Payee would have received had Payee converted this Note immediately prior to that change. Following any reclassification, exchange, substitution or in-kind distribution, Maker shall promptly issue to Payee a new Note for such new securities or other property. The new Note shall provide for adjustments which shall be nearly equivalent as may be reasonably practicable to the adjustments provided for in this Section 2(b) including, without limitation, adjustments to the number of securities or property issuable upon conversion of the new Note. The provisions of this Section 2(b)(ii) shall similarly apply to successive reclassifications, exchanges, substitutions or other events and successive dividends. (iii) REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALE OF ASSETS. In case of any merger of Maker with or into another company (other than a merger with another company in which Maker is a continuing company and which does not result in any reclassification or change of outstanding securities issuable upon conversion of this Note), consolidation or in case of any sale of all or substantially all of the assets of Maker, Maker shall, as condition precedent to such transaction, execute a new Note or cause such successor or purchasing company, as the case may be, to execute a new Note, providing that Payee shall have the right to convert such new Note and upon such conversion to receive, in lieu of each share of Common Stock theretofore issuable upon conversion of this Note, the kind and amount of shares of stock, other securities, money and property issuable or payable, as the case may be, upon such merger, consolidation, sale of assets or other change to a holder of one share of Common Stock. Such new Note shall provide for adjustments that shall be as nearly equivalent as may be reasonably practicable to the adjustments provided for in this Section 2(b). The provisions of this Section 2(b)(iii) shall similarly apply to successive mergers, consolidations, sale of assets and other changes and transfers. (iv) NOTICE OF ADJUSTMENTS. Maker shall promptly give written notice of each adjustment or readjustment of the number of shares of Common Stock or other securities issuable upon conversion of this Note, by first class mail, postage 4 prepaid, to the Payee at the Payee's address for notices in the Merger Agreement. This notice shall state the adjustment or readjustment and show in reasonable detail the facts on which that adjustment or readjustment is based. Maker further agrees to notify Payee in writing of a reorganization, merger or sale in accordance with Section 2(b)(iii) at least thirty (30) days prior to the effective date thereof. (v) NO CHANGE NECESSARY. The form of this Note need not be changed because of any adjustment in the number of shares of Common Stock issuable upon its conversion. A Note issued after any adjustment on conversion or upon replacement may continue to express the same number of shares of Common Stock as are stated on this Note as initially issued, and such number of shares shall be considered to have been so changed as of the close of business on the date of adjustment. (vi) RESERVATION OF STOCK. Maker covenants that it will at all times reserve and keep available, for issuance upon conversion of this Note, such shares of its Common Stock from time to time issuable upon conversion of this Note, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of this Note, Maker will take such corporate action as may, in the opinion of its counsel, be reasonably necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. Issuance of this Note shall constitute full authority to Maker's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock issuable upon the conversion of this Note. (vii) NOTICES OF RECORD DATE. In the event Maker intends to declare a record date for the holders of Common Stock for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, Maker shall mail to Payee of this Note at least ten days prior to the proposed record date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution. (viii) NO IMPAIRMENT. Maker shall not, by amendment of its Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Note by Maker, but shall at all time in good faith assist in carrying out of all the provisions of this Section 2(b) and in taking all such action as may be reasonably necessary or appropriate to protect Payee's rights under this Section 2(b) against impairment. (c) GOVERNANCE RIGHTS. Upon conversion of this Note pursuant to Section 2(a), and conversion of the Zero Coupon Convertible Debenture due 2006 representing up to 5 $447,416,805 issued by Maker to GE Investments Subsidiary, Inc., Payee shall have the right to elect one additional director to the Board of Directors of Maker pursuant to the Certificate of Incorporation of Maker. 3. REPRESENTATIONS AND WARRANTIES OF MAKER. Maker hereby represents and warrants to Payee that: (a) Maker is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has the full power and authority, and the legal right, to make, deliver and perform this Note and its obligations hereunder on the terms and conditions hereof and has taken all necessary corporate action to authorize the execution, delivery and performance of this Note and to authorize the borrowing hereunder, and this Note has been duly executed and delivered on behalf of Maker; (b) this Note constitutes a legal, valid and binding obligation of Maker enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); (c) the execution, delivery and performance of this Note, the borrowing hereunder and the use of the proceeds thereof will not violate any material requirement of law, any material contractual obligation of Maker or its subsidiaries or any of their applicable charters, bylaws or similar documents; and (d) no Event of Default (as defined below) has occurred and is continuing. 4. REPRESENTATIONS AND WARRANTIES OF PAYEE. Payee hereby represents and warrants to Maker that: (a) Payee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has the full power and authority, and the legal right, to make the loan to Maker evidenced by this Note and has taken all necessary corporate action to authorize the making of such loan, and this Note has been duly executed and delivered on behalf of Payee; (b) Payee is an "accredited investor" within the meaning of Regulation D of the Securities Act of 1933, as amended (the "Securities Act") and is being issued this Note for its own account and not with a view to the distribution thereof in violation of the Securities Act; (c) Payee understands and acknowledges that this Note has not been registered under the Securities Act and may be offered and resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such exemption is required by law, and that Maker is not required to register this Note; and (d) Payee has had access to such financial and other information concerning Maker as it deemed necessary in connection with the issuance of this Note. 5. EVENTS OF DEFAULT. An Event of Default occurs if: (1) Maker pursuant to or within the meaning of Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors (a "Bankruptcy Law"): (a) commences a voluntary case, (b) consents to the entry of an order for relief against it in an involuntary case, (c) consents to the appointment of a receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law (a "Custodian") or (d) makes a general assignment for the benefit of its creditors; or (2) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief against Maker as debtor in an involuntary case, (b) appoints a Custodian of Maker, or (c) orders the liquidation of Maker, and the order or decree remains unstayed and in effect for 90 days; or 6 (3) a Change of Control (as defined below) occurs, or (4) Maker fails to pay the principal amount due at the Stated Maturity Date. Upon the occurrence of an Event of Default, Payee shall have the option to receive either (i) the number of Conversion Shares Payee would have received if Payee had exercised its rights under Section 2 immediately prior to such Event of Default or (ii) either (A) in the event of a default pursuant to (1), (2) or (3) above, the Amortized Face Amount or (B) in the event of a default pursuant to (4) above, the principal amount due at the Stated Maturity Date plus accrued interest thereon from the Stated Maturity Date at the Yield to Maturity. In the case of either (i) or (ii), the obligations of Payee shall immediately become due and payable. As used herein the term "Change of Control" means any of the following: (i) a merger, consolidation or other business combination or transaction to which a Maker is a party if the shareholders of Maker immediately prior to the effective date of such merger, consolidation or other business combination or transaction, do not have beneficial ownership of voting securities representing 50% or more of the total voting power of the surviving corporation or its parent immediately following such merger, consolidation or other business combination or transaction; (ii) any person or entity shall have beneficial ownership of 20% or more of the outstanding shares of Class A Stock (as such term is defined in Maker's Certificate of Incorporation) at a time when the holders of Common Stock do not elect a majority of the Board of Directors of Maker; (iii) a sale of all or substantially all of the consolidated assets of Maker to another person or entity or (iv) a liquidation or dissolution of Maker. 6. SUBORDINATION. Payee agrees that payment of the principal of and interest on this Note shall be subordinated in right of payment to the prior payment in full of all Senior Debt at any time outstanding. Notwithstanding the immediately preceding sentence, such subordination shall not limit the payment of principal of and interest on this Note in accordance with its terms unless, at the time of such payment, there is a default in the payment of principal of or interest on such Senior Debt, there exists any event which, with the giving of notice or the passage of time, is reasonably likely to give rise to a default under such Senior Debt, or in the event that a default under this Note has caused a default under such Senior Debt. The limitation on payments under this Note shall continue until such time as the default on such Senior Debt has been cured or waived. The provisions of this paragraph are intended solely for the purpose of defining the relative rights of the Payee of this Note, on the one hand, and the holder of Senior Debt, on the other hand. "Senior Debt" shall mean (a) any and all liabilities of Maker recorded on the Maker's balance sheet or in the footnotes thereto in accordance with GAAP (as defined below); (b) the principal of, premium (if any), interest on, and other moneys due which arise out of any indebtedness of Maker (or any refinancing thereof): (1) for borrowed funds; (2) due to sellers or lessors of any real or personal property to Maker; or (3) for reimbursement obligations with respect to letters of credit, except in each case referred to in subclauses (1), (2) and (3) above, to the extent the holder of such indebtedness otherwise agrees in writing; (c) any other indebtedness of Maker, except to the extent that the holder of such indebtedness otherwise agrees in writing; and (d) any debentures, notes or other evidence of indebtedness issued in exchange for any of the foregoing indebtedness, or any indebtedness arising from the satisfaction of such indebtedness by a guarantor. "GAAP" means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of 7 the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession). The provisions of this Section 6 shall not apply to conversions pursuant to Section 2. 7. BUSINESS DAY. If any payment or conversion shall be required by the terms hereof to be made on a day that is not a Business Day (as defined below), such payment or conversion shall be made on the immediately succeeding Business Day. For purposes hereof, "Business Day" shall mean a day other than a Saturday, Sunday, holiday or other day on which commercial banks in the State of New York are authorized or required by law to close. 8. NO WAIVER. No action or omission by Payee shall constitute a waiver of any rights or remedies of Payee hereunder. Such rights and remedies are cumulative and not exclusive of any rights or remedies provided by law. 9. AMENDMENT; ASSIGNMENT . The terms of this Note may be amended, supplemented or modified only with the written consent of Maker and Payee. This Note shall be binding upon and inure to the benefit of Maker, Payee and their respective successors and assigns, except that neither Payee nor Maker may assign or transfer any of its rights or obligations under this Note without the prior written consent of the other party. In the event of any assignment or transfer by Payee with the prior written consent of Maker, Maker shall, upon the request of the transferee and receipt of this Note from transferee, reissue this Note in the name of the transferee. 10. GOVERNING LAW; JURISDICTION. This Note is made and delivered in New York, New York, and, pursuant to Section 5-1401 of the General Obligations Law of the State of New York, shall be governed by and construed and interpreted in accordance with the laws of the State of New York applicable to contracts fully performed in New York. All judicial actions, suits or proceedings brought against Maker or Payee with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Note or for recognition or enforcement of any judgment rendered in any such proceedings shall be brought exclusively in any state or federal court located in the County of New York. 11. MUTILATED, DESTROYED OR MISSING NOTES. If this Note is mutilated and surrendered to Maker or Maker receives evidence to its satisfaction of the destruction, loss or theft of this Note, Maker shall issue a replacement Note. If required by Maker, an indemnity bond must be supplied by Payee that is sufficient in the judgment of Maker to protect Maker from any loss it may suffer if this Note is replaced. Maker may charge for any expenses of replacing this Note IN WITNESS WHEREOF, Maker has caused this Note to be duly issued as of the date first above written. NBC INTERNET, INC. 8 By: /s/ Chris Kitze ---------------------------------- Name: Chris Kitze Title: Chief Executive Officer ACKNOWLEDGED AND AGREED: NBC MULTIMEDIA, INC. By: /s/ Martin J. Yudkovitz -------------------------- Name: Martin J. Yudkovitz Title: President EX-5 6 EXHIBIT 5 Exhibit 5 NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS NOTE MAY BE MADE EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) IF MAKER HAS BEEN FURNISHED WITH AN OPINION REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO MAKER OF COUNSEL REASONABLY SATISFACTORY TO MAKER THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER. ISSUE PRICE: $759.918 PER $1,000 OF PRINCIPAL AMOUNT TOTAL ISSUE PRICE: $340,000,000 ORIGINAL ISSUE DISCOUNT: $240.082 PER $1,000 OF PRINCIPAL AMOUNT TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT: $107,416,805 YIELD TO MATURITY: 4.0% per annum ISSUE DATE: NOVEMBER 30, 1999 SUBORDINATED ZERO COUPON CONVERTIBLE DEBENTURE due 2006 representing up to $447,416,805 No. 2. November 30, 1999 1. PAYMENT OF PRINCIPAL AND ORIGINAL ISSUE DISCOUNT. FOR VALUE RECEIVED, the undersigned, NBC Internet, Inc., a Delaware corporation ("Maker"), hereby promises to pay GE Investments Subsidiary, Inc. (or an affiliate thereof) or the subsequent registered owner of this Note ("Payee"), in the manner hereinafter provided, the principal amount of Four Hundred Forty Seven Million Four Hundred Sixteen Thousand Eight Hundred Five Dollars ($447,416,805) on November 30, 2006 (the "Stated Maturity Date"). The principal of this Note shall not bear interest except in the case of a default in the payment of principal upon acceleration, upon redemption or at the Stated Maturity Date and in such case the amount payable hereon, in lieu of the principal amount due at the Stated Maturity Date hereof shall be the amount (the "Amortized Face Amount") equal to (a) the Issue Price (as defined below) plus (b) that portion of the difference between the Issue Price and the principal amount that has accrued at the Yield to Maturity (as defined below) (calculated on an annual bond equivalent basis from November 30, 1999) at the date as of which the Amortized Face Amount is calculated, which shall accrue from the date of such default in payment to the date payment on such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the Yield to Maturity, which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand. As used herein, the term "Issue Price" means the principal amount of this Note less the Original Issue Discount stated on the face 2 hereof, and the term "Yield to Maturity" means the Yield to Maturity stated on the face hereof for the period from the Original Issue Date stated on the face hereof to the Stated Maturity Date. This Note is issued pursuant to the Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated as of July 8, 1999 (the "Merger Agreement"), among National Broadcasting Company, Inc., Payee, Neon Media Corporation, Maker and Xoom.com, Inc. Subject to the right of Payee to convert this Note pursuant to Section 2, this Note may be redeemed in whole at any time after November 30, 2004 at the option of Maker without penalty or premium, at a redemption price equal to the Amortized Face Amount, upon at least thirty (30) days prior written notice thereof to Payee. Maker may pay the redemption price in cash, Common Stock (as defined below) or both, PROVIDED that in any event the issuance of 6,533,352 shares of Common Stock shall be deemed to be full satisfaction of the redemption price. Any Common Stock issued to pay the redemption price shall be valued based on the average closing price for the 30-day period ending the day prior to the date of redemption. All payments to be made hereunder shall be made to Payee at 30 Rockefeller Plaza, New York, New York 10012 (Attention: Chief Financial Officer). 2. CONVERSION RIGHT. (a) CONVERSION. Payee has the right, at its option, at any time after November 30, 2000 to convert all (but not less than all) of the principal of this Note into an aggregate of 5,338,357 fully paid and nonassessable shares (as adjusted pursuant to Section 2(b), the "Conversion Shares") of Class B common stock, par value $.0001 per share, of Maker ("Common Stock") upon surrender of this Note at the office of Maker. Upon the receipt of this Note, duly endorsed, and a signed notice from Payee that Payee is irrevocably exercising its conversion right pursuant to this Section 2(a), Maker shall promptly deliver the Conversion Shares registered in the name of Payee. (b) ADJUSTMENTS. The conversion rights set forth are subject to adjustment as provided below. (i) STOCK SPLITS, STOCK DIVIDENDS AND COMBINATIONS. If Maker shall at any time subdivide the outstanding shares of Common Stock or shall issue a stock dividend with respect to the Common Stock, then the number of shares of Common Stock for which this Note is convertible immediately prior to that subdivision shall be proportionately increased, and if Maker shall at any time combine the outstanding shares of Common Stock, then the number of shares of Common Stock for which this Note is exercisable immediately prior to that combination shall be proportionately reduced. Any adjustment under this Section 2(b)(i) shall become effective at the close of business on the date the subdivision, stock dividend or combination becomes effective. 3 (ii) RECLASSIFICATION, EXCHANGE, SUBSTITUTION AND IN-KIND DISTRIBUTION. If the Common Stock issuable on conversion of this Note shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than a subdivision or combination of shares provided for above) or upon the payment of a dividend in cash, securities or property other than Common Stock, then Payee shall, upon conversion of this Note, be entitled to receive, in lieu of the Common Stock that Payee would have become entitled to receive but for such change, that number of shares of such other class or classes of stock that is equivalent to the number of shares of Common Stock that Payee would have received had Payee converted this Note immediately prior to that change. Following any reclassification, exchange, substitution or in-kind distribution, Maker shall promptly issue to Payee a new Note for such new securities or other property. The new Note shall provide for adjustments which shall be nearly equivalent as may be reasonably practicable to the adjustments provided for in this Section 2(b) including, without limitation, adjustments to the number of securities or property issuable upon conversion of the new Note. The provisions of this Section 2(b)(ii) shall similarly apply to successive reclassifications, exchanges, substitutions or other events and successive dividends. (iii) REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALE OF ASSETS. In case of any merger of Maker with or into another company (other than a merger with another company in which Maker is a continuing company and which does not result in any reclassification or change of outstanding securities issuable upon conversion of this Note), consolidation or in case of any sale of all or substantially all of the assets of Maker, Maker shall, as condition precedent to such transaction, execute a new Note or cause such successor or purchasing company, as the case may be, to execute a new Note, providing that Payee shall have the right to convert such new Note and upon such conversion to receive, in lieu of each share of Common Stock theretofore issuable upon conversion of this Note, the kind and amount of shares of stock, other securities, money and property issuable or payable, as the case may be, upon such merger, consolidation, sale of assets or other change to a holder of one share of Common Stock. Such new Note shall provide for adjustments that shall be as nearly equivalent as may be reasonably practicable to the adjustments provided for in this Section 2(b). The provisions of this Section 2(b)(iii) shall similarly apply to successive mergers, consolidations, sale of assets and other changes and transfers. (iv) NOTICE OF ADJUSTMENTS. Maker shall promptly give written notice of each adjustment or readjustment of the number of shares of Common Stock or other securities issuable upon conversion of this Note, by first class mail, postage prepaid, to the Payee at the Payee's address for notices in the Merger Agreement. This notice shall state that adjustment or readjustment and show in reasonable detail the facts on which the adjustment or readjustment is based. Maker further 5 agrees to notify Payee in writing of a reorganization, merger or sale in accordance with Section 2(b)(iii) at least thirty (30) days prior to the effective date thereof. (v) NO CHANGE NECESSARY. The form of this Note need not be changed because of any adjustment in the number of shares of Common Stock issuable upon its conversion. A Note issued after any adjustment on conversion or upon replacement may continue to express the same number of shares of Common Stock as are stated on this Note as initially issued, and such number of shares shall be considered to have been so changed as of the close of business on the date of adjustment. (vi) RESERVATION OF STOCK. Maker covenants that it will at all times reserve and keep available, for issuance upon conversion of this Note, such shares of its Common Stock from time to time issuable upon conversion of this Note, and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of this Note, Maker will take such corporate action as may, in the opinion of its counsel, be reasonably necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. Issuance of this Note shall constitute full authority to Maker's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock issuable upon the conversion of this Note. (vii) NOTICES OF RECORD DATE. In the event Maker intends to declare a record date for the holders of Common Stock for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, Maker shall mail to Payee of this Note at least ten days prior to the proposed record date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution. (viii) NO IMPAIRMENT. Maker shall not, by amendment of its Certificate of Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Note by Maker, but shall at all time in good faith assist in carrying out of all the provisions of this Section 2(b) and in taking all such action as may be reasonably necessary or appropriate to protect Payee's rights under this Section 2(b) against impairment. (c) GOVERNANCE RIGHTS. Upon conversion of this Note pursuant to Section 2(a), and conversion of the Zero Coupon Convertible Debenture due 2006 representing up to $39,477,953 issued by Maker to NBC Multimedia, Inc., Payee shall have the right to elect one additional director to the Board of Directors of Maker pursuant to the Certificate of Incorporation of Maker. 5 3. REPRESENTATIONS AND WARRANTIES OF MAKER. Maker hereby represents and warrants to Payee that: (a) Maker is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has the full power and authority, and the legal right, to make, deliver and perform this Note and its obligations hereunder on the terms and conditions hereof and has taken all necessary corporate action to authorize the execution, delivery and performance of this Note and to authorize the borrowing hereunder, and this Note has been duly executed and delivered on behalf of Maker; (b) this Note constitutes a legal, valid and binding obligation of Maker enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); (c) the execution, delivery and performance of this Note, the borrowing hereunder and the use of the proceeds thereof will not violate any material requirement of law, any material contractual obligation of Maker or its subsidiaries or any of their applicable charters, bylaws or similar documents; and (d) no Event of Default (as defined below) has occurred and is continuing. 4. REPRESENTATIONS AND WARRANTIES OF PAYEE. Payee hereby represents and warrants to Maker that: (a) Payee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has the full power and authority, and the legal right, to make the loan to Maker evidenced by this Note and has taken all necessary corporate action to authorize the making of such loan, and this Note has been duly executed and delivered on behalf of Payee; (b) Payee is an "accredited investor" within the meaning of Regulation D of the Securities Act of 1933, as amended (the "Securities Act") and is being issued this Note for its own account and not with a view to the distribution thereof in violation of the Securities Act; (c) Payee understands and acknowledges that this Note has not been registered under the Securities Act and may be offered and resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such exemption is required by law, and that Maker is not required to register this Note; and (d) Payee has had access to such financial and other information concerning Maker as it deemed necessary in connection with the issuance of this Note. 5. EVENTS OF DEFAULT. An Event of Default occurs if: (1) Maker pursuant to or within the meaning of Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors (a "Bankruptcy Law"): (a) commences a voluntary case, (b) consents to the entry of an order for relief against it in an involuntary case, (c) consents to the appointment of a receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law (a "Custodian") or (d) makes a general assignment for the benefit of its creditors; or (2) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief against Maker as debtor in an involuntary case, (b) appoints a Custodian of Maker, or (c) orders the liquidation of Maker, and the order or decree remains unstayed and in effect for 90 days; or (3) a Change of Control (as defined below) occurs, or (4) Maker fails to pay the principal amount due at the Stated Maturity Date. Upon the occurrence of an Event of Default, Payee shall have the option to receive either (i) the number of Conversion Shares Payee would have received if 6 Payee had exercised its rights under Section 2 immediately prior to such Event of Default or (ii) either (A) in the event of a default pursuant to (1), (2) or (3) above, the Amortized Face Amount or (B) in the event of a default pursuant to (4) above, the principal amount due at the Stated Maturity Date plus accrued interest thereon from the Stated Maturity Date at the Yield to Maturity. In the case of either (i) or (ii), the obligations of Payee shall immediately become due and payable. As used herein the term "Change of Control" means any of the following: (i) a merger, consolidation or other business combination or transaction to which a Maker is a party if the shareholders of Maker immediately prior to the effective date of such merger, consolidation or other business combination or transaction, do not have beneficial ownership of voting securities representing 50% or more of the total voting power of the surviving corporation or its parent immediately following such merger, consolidation or other business combination or transaction; (ii) any person or entity shall have beneficial ownership of 20% or more of the outstanding shares of Class A Stock (as such term is defined in Maker's Certificate of Incorporation) at a time when the holders of Common Stock do not elect a majority of the Board of Directors of Maker; (iii) a sale of all or substantially all of the consolidated assets of Maker to another person or entity or (iv) a liquidation or dissolution of Maker. 6. SUBORDINATION. Payee agrees that payment of the principal of and interest on this Note shall be subordinated in right of payment to the prior payment in full of all Senior Debt at any time outstanding. Notwithstanding the immediately preceding sentence, such subordination shall not limit the payment of principal of and interest on this Note in accordance with its terms unless, at the time of such payment, there is a default in the payment of principal of or interest on such Senior Debt, there exists any event which, with the giving of notice or the passage of time, is reasonably likely to give rise to a default under such Senior Debt, or in the event that a default under this Note has caused a default under such Senior Debt. The limitation on payments under this Note shall continue until such time as the default on such Senior Debt has been cured or waived. The provisions of this paragraph are intended solely for the purpose of defining the relative rights of the Payee of this Note, on the one hand, and the holder of Senior Debt, on the other hand. "Senior Debt" shall mean (a) any and all liabilities of Maker recorded on the Maker's balance sheet or in the footnotes thereto in accordance with GAAP (as defined below); (b) the principal of, premium (if any), interest on, and other moneys due which arise out of any indebtedness of Maker (or any refinancing thereof): (1) for borrowed funds; (2) due to sellers or lessors of any real or personal property to Maker; or (3) for reimbursement obligations with respect to letters of credit, except in each case referred to in subclauses (1), (2) and (3) above, to the extent the holder of such indebtedness otherwise agrees in writing; (c) any other indebtedness of Maker, except to the extent that the holder of such indebtedness otherwise agrees in writing; and (d) any debentures, notes or other evidence of indebtedness issued in exchange for any of the foregoing indebtedness, or any indebtedness arising from the satisfaction of such indebtedness by a guarantor. "GAAP" means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession). The provisions of this Section 6 shall not apply to conversions pursuant to Section 2. 7 7. BUSINESS DAY. If any payment or conversion shall be required by the terms hereof to be made on a day that is not a Business Day (as defined below), such payment or conversion shall be made on the immediately succeeding Business Day. For purposes hereof, "Business Day" shall mean a day other than a Saturday, Sunday, holiday or other day on which commercial banks in the State of New York are authorized or required by law to close. 8.NO WAIVER. No action or omission by Payee shall constitute a waiver of any rights or remedies of Payee hereunder. Such rights and remedies are cumulative and not exclusive of any rights or remedies provided by law. 9. AMENDMENT; ASSIGNMENT . The terms of this Note may be amended, supplemented or modified only with the written consent of Maker and Payee. This Note shall be binding upon and inure to the benefit of Maker, Payee and their respective successors and assigns, except that neither Payee nor Maker may assign or transfer any of its rights or obligations under this Note without the prior written consent of the other party. In the event of any assignment or transfer by Payee with the prior written consent of Maker, Maker shall, upon the request of the transferee and receipt of this Note from transferee, reissue this Note in the name of the transferee. 10. GOVERNING LAW; JURISDICTION. This Note is made and delivered in New York, New York, and, pursuant to Section 5-1401 of the General Obligations Law of the State of New York, shall be governed by and construed and interpreted in accordance with the laws of the State of New York applicable to contracts fully performed in New York. All judicial actions, suits or proceedings brought against Maker or Payee with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Note or for recognition or enforcement of any judgment rendered in any such proceedings shall be brought exclusively in any state or federal court located in the County of New York. 11. MUTILATED, DESTROYED OR MISSING NOTES. If this Note is mutilated and surrendered to Maker or Maker receives evidence to its satisfaction of the destruction, loss or theft of this Note, Maker shall issue a replacement Note. If required by Maker, an indemnity bond must be supplied by Payee that is sufficient in the judgment of Maker to protect Maker from any loss it may suffer if this Note is replaced. Maker may charge for any expenses of replacing this Note. IN WITNESS WHEREOF, Maker has caused this Note to be duly issued as of the date first above written. NBC INTERNET, INC. By: /s/ Chris Kitze ----------------------------------- Name: Chris Kitze Title: Chief Executive Officer 8 ACKNOWLEDGED AND AGREED: GE INVESTMENTS SUBSIDIARY, INC. By: /s/ Robert E. Healing ----------------------------------- Name: Robert E. Healing Title: Vice President EX-6 7 EXHIBIT 6 Exhibit 6 --------------------------- XENON 2, INC.* GOVERNANCE AND INVESTOR RIGHTS AGREEMENT between XENON 2, INC. and NATIONAL BROADCASTING COMPANY, INC. --------------------------- Dated as of November 30, 1999 * Changed its name to NBC Internet, Inc. on July 8, 1999 - -------------------------------------------------------------------------------- GOVERNANCE AND INVESTOR RIGHTS AGREEMENT THIS GOVERNANCE AND INVESTOR RIGHTS AGREEMENT (this "Agreement"), dated as of November 30, 1999, is made and entered into by and between Xenon 2, Inc., a Delaware corporation (the "Company"), and National Broadcasting Company, Inc., a Delaware corporation ("NBC"). W I T N E S S E T H: WHEREAS, the Company and NBC have entered into that certain Agreement and Plan of Contribution, Investment and Merger (the "Merger Agreement"), dated May 9, 1999, and into certain other agreements referred to in, or transactions contemplated by, the Merger Agreement (the "Transactions"); WHEREAS, the Company and NBC desire, in connection with the Transactions, to make certain covenants and agreements with one another pursuant to this Agreement; WHEREAS, it is a condition to the consummation of the Transactions that the parties enter into this Agreement. NOW, THEREFORE, in consideration of the mutual agreements and understandings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE I CERTAIN DEFINITIONS As used in this Agreement, the following terms shall have the following respective meanings: "Affiliate" shall mean (i) with respect to the Company, the Company's Subsidiaries, (ii) with respect to NBC, except as provided in Section 2.2 below, NBC's Subsidiaries and the holder of the Company Convertible Note and (iii) with respect to NBC Parent, NBC Parent's Subsidiaries other than NBC and its Affiliates; PROVIDED, HOWEVER, that for purposes of this Agreement, the Company and its Affiliates on the one hand, and either NBC and its Affiliates or NBC Parent and its Affiliates on the other hand, shall not be deemed to be "Affiliates" of one another. "Beneficially Own" or "Beneficial Ownership" shall have the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act. Without limiting the foregoing, the holder of the Company Convertible Note will be deemed to Beneficially Own the shares of Common Stock issuable upon conversion thereof; PROVIDED that for all purposes under this Agreement, NBC and its Affiliates shall not be deemed to beneficially own any Voting Securities beneficially owned by NBC Parent or its Affiliates and NBC Parent and its Affiliates shall not be deemed to beneficially own any Voting Securities beneficially owned by NBC and its Affiliates, in each such case unless and until NBC Parent or its Affiliates shall have become Restricted Parties. "Board of Directors" shall mean the Board of Directors of the Company as from time to time hereafter constituted. "Certificate of Incorporation" shall mean the Amended and Restated Certificate of Incorporation of the Company as in effect on the date hereof, substantially in the form of Exhibit A hereto, and as hereafter from time to time amended, modified, supplemented or restated in accordance with the terms hereof and pursuant to applicable law. "Change in Control of the Company" shall mean any of the following: (i) a merger, consolidation or other business combination or transaction to which the Company is a party if the stockholders of the Company immediately prior to the effective date of such merger, consolidation or other business combination or transaction, as a result of such merger, consolidation or other business combination or transaction, do not have Beneficial Ownership of Voting Securities representing 50% or more of the Total Current Voting Power of the surviving corporation (or its parent) following such merger, consolidation or other business combination or transaction; (ii) any Person or 13D Group, shall have Beneficial Ownership of 20% or more of the outstanding shares of Class A Common Stock at a time when the holders of the Class B Common Stock do not elect a majority of the Board of Directors; (iii) a sale of all or substantially all the consolidated assets of the Company to any Person or Persons (other than a Restricted Party or any 13D Group to which any Restricted Party is a member); or (iv) a liquidation or dissolution of the Company. "Class A Directors" shall have the meaning set forth in the Company's Certificate of Incorporation. "Class A Common Stock" shall have the meaning set forth in the Company's Certificate of Incorporation. "Class B Directors" shall have the meaning set forth in the Company's Certificate of Incorporation. "Class B Common Stock" shall have the meaning set forth in the Company's Certificate of Incorporation. "Commission" shall mean the Securities and Exchange Commission and any successor commission or agency having similar powers. "Company Competitor" shall have the meaning ascribed to the term "Newco Competitor" in that certain License Agreement (as defined in the Merger Agreement). 2 "Common Stock" shall mean the Company's Class A Common Stock and the Class B Common Stock. "Eligible Purchaser" shall mean any Person (other than the Company or any Person that is or becomes a Restricted Party) that is not a Company Competitor. "Effective Time" shall have the meaning set forth in the Merger Agreement. "Exchange Act" shall mean, as of any date, the Securities Exchange Act of 1934, as amended, or any similar federal statute then in effect and superseding such act, and any reference to a particular section thereof shall include a reference to the comparable section, if any, of such similar federal statute, and the rules and regulations thereunder. "NBC Parent" shall mean the ultimate parent corporation of NBC (if any), which as of today is General Electric Company, a New York corporation. "NBC Tender Offer" shall mean a bona fide public tender offer subject to the provisions of Regulation 14d under the Exchange Act by a Restricted Party (or any 13D Group that includes a Restricted Party) to purchase or exchange for cash or other consideration any Voting Securities. "Newco Convertible Note" shall have the meaning set forth in the Merger Agreement. "Note Conversion Time" shall mean any time following the Effective Time at which there shall be any conversion into shares of Class B Common Stock pursuant to the Newco Convertible Note, which shares of Class B Common Stock are Beneficially Owned by a Restricted Party. "Person" shall mean an individual or a corporation, association, partnership, limited liability company, joint venture, organization, business, trust or any other entity or organization, including a government or any subdivision or agency thereof. "Restricted Parties" shall mean (i) NBC, (ii) NBC's Affiliates and (iii) from and after the time NBC Parent or any of its Affiliates shall convert any shares of Class A Common Stock into shares of Class B Common Stock pursuant to Section 2.2 of this Agreement, NBC Parent and its Affiliates. "Securities Act" shall mean, as of any date, the Securities Act of 1933, as amended, or any similar federal statute then in effect and superseding such act, and any reference to a particular section thereof shall include a reference to the comparable section, if any, of any such similar federal statute, and the rules and regulations thereunder. "Shares" shall mean any shares of Voting Securities that are Beneficially Owned by any Restricted Party or any 13D Group of which any Restricted Party is a member. 3 "Standstill Limit" shall mean the percentage of the Total Current Voting Power of the Company that would be held by NBC and its Affiliates on June 11, 1999 if the transactions contemplated by the Merger Agreement had been consummated on such date, assuming that the Company Convertible Note had been converted at such time into shares of Class B Common Stock. "Standstill Period" shall mean the period beginning on the Closing Date (as defined in the Merger Agreement) and ending on the occurrence of a Standstill Termination Event; PROVIDED that the Standstill Period shall recommence immediately upon the occurrence of a Standstill Reinstatement Event . "Standstill Reinstatement Event" shall mean that the Standstill Period has terminated pursuant to clause (iii) of the definition of "Standstill Termination Event" and such Third Party Tender Offer is withdrawn or terminated (without having been consummated). Notwithstanding the foregoing, a Standstill Reinstatement Event will not occur if prior to the occurrence of the event specified in the preceding sentence that would otherwise result in a Standstill Reinstatement Event, another Standstill Termination Event occurs for which there has not been a related Standstill Reinstatement Event. "Standstill Revised Limit" shall mean the percentage of the Total Current Voting Power represented by all shares of Voting Securities Beneficially Owned by the Restricted Parties as of the occurrence of a Standstill Reinstatement Event. "Standstill Termination Event" shall mean the earliest to occur of (i) the third anniversary of the date of this Agreement, (ii) the first anniversary of the date on which the Restricted Parties or any 13D Group of which they are a member no longer Beneficially Own any shares of Class B Common Stock (including as a result of their automatic conversion to Class A Common Stock in accordance with the Company's Certificate of Incorporation), (iii) a Third Party Tender Offer, (iv) the date the Company enters into an agreement relating to a transaction that if consummated will result in a Change in Control of the Company or (v) any Change in Control of the Company occurs; PROVIDED, that the Standstill Period will be immediately reinstated upon the occurrence of a Standstill Reinstatement Event; PROVIDED FURTHER that, upon a Standstill Reinstatement Event, if the Standstill Revised Limit is greater than the Standstill Limit, then the Standstill Revised Limit and not the Standstill Limit shall thereafter be deemed the Standstill Limit for all purposes hereunder. "Subsidiary" shall mean, as to any Person, another Person of which outstanding securities having the power to elect a majority of the members of the board of directors (or comparable body or authority performing similar functions) of such other Person are at the time owned, directly or indirectly through one or more intermediaries, or both, by such first Person. "Takeover Transaction" means (i) the direct or indirect acquisition or purchase of 50% or more of the assets (based on the fair market value thereof) of the Company and 4 its Affiliates, taken as a whole, or of 50% or more of any class of equity securities of the Company or any of its Affiliates or any tender offer or exchange offer (including by the Company or its Affiliates) that if consummated would result in any person Beneficially Owning 50% or more of any class of equity securities of the Company or any of its Affiliates, (ii) a sale of all or substantially all of the assets of the Company and its Affiliates or (iii) a merger or consolidation of the Company as a result of which the stockholders of the Company immediately prior to such transaction would not Beneficially Own immediately after such transaction 50% or more of the resulting or surviving entity (or the parent thereof). "Third Party Tender Offer" shall mean a bona fide public tender offer subject to the provisions of Regulation 14D under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), when first commenced within the meaning of Rule 14d-2 of the rules and regulations under the Exchange Act by a Person or 13D Group (which is not made by and does not include any of the Company or any Affiliate or a Restricted Party or any 13D Group that includes the Company or an Affiliate or a Restricted Party) to purchase or exchange for cash or other consideration any Voting Securities and which consists of an offer to acquire 20% or more of the then Total Current Voting Power of the Company. "Total Current Voting Power" shall mean, with respect to any corporation, the total number of votes which may be cast in the election of members of the Board of Directors of such corporation if all securities entitled to vote in the election of such directors are present and voted; PROVIDED that, for purposes of this definition, the Class A Common Stock and the Class B Common Stock shall be considered as a single class. "Voting Securities" shall mean shares of Common Stock and any other securities of the Company entitled to vote generally in the election of members of the Board of Directors or any other securities (including, without limitation, rights and options) convertible into, exchangeable for or exercisable for, any of the foregoing (whether or not presently convertible, exchangeable or exercisable). "13D Group" shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities of a corporation which would be required under Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder, to file a statement on Schedule 13D pursuant to Rule 13d-1(a) or Schedule 13G pursuant to rule 13d-1(c) with the Commission as a "person" within the meaning of Section 13(d)(3) of the Exchange Act if such group Beneficially Owned Voting Securities representing more than 5% of any class of Voting Securities then outstanding; PROVIDED, HOWEVER, that for all purposes under this Agreement, NBC and its Affiliates shall not be deemed to have formed, joined, participated in or be a member of any 13D Group which includes NBC Parent and its Affiliates unless and until NBC Parent or its Affiliates shall have become Restricted Parties. 5 ARTICLE II STANDSTILL PROVISIONS Section 2.1 RESTRICTIONS ON NBC'S ACTIVITIES REGARDING THE COMPANY AND ITS STOCK. NBC agrees that during the Standstill Period, without first obtaining the prior approval of the Class A Directors of the Company, specifically expressed in a resolution adopted by a majority of the Class A Directors of the Company, NBC will not, and NBC will cause each Restricted Party, each 13D Group of which a Restricted Party is a member, and shall use its best efforts to cause each of their respective agents, representatives, employees, directors, and officers (in such capacity) not to, directly or indirectly (nor to solicit, initiate, assist or encourage NBC Parent or its Affiliates to, directly or indirectly): (a) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, any Voting Securities, if after giving effect to such acquisition the Total Current Voting Power represented by the Voting Securities Beneficially Owned by the Restricted Parties exceeds the Standstill Limit; PROVIDED, HOWEVER, that if at any time during the Standstill Period, (x) any Person other than any Restricted Party or any 13D Group of which a Restricted Party is a member has made any written proposal or offer relating to a Takeover Transaction or Change in Control of the Company which has not been rejected within 10 business days by the Board of Directors, (y) the Board of Directors has determined to pursue a Takeover Transaction or Change in Control of the Company and the Board of Directors has not resolved to stop pursuing such Takeover Transaction or Change in Control of the Company, or (z) the Board of Directors or the Company has engaged in any discussions or negotiations with, or provided any information to, any Person other than any Restricted Party, or any 13D Group of which any Restricted Party is a member, with respect to a Takeover Transaction or Change in Control of the Company and the Board of Directors has not resolved to terminate all such discussions, negotiations and provision of information, then, for so long as such condition continues to apply, the limitation on the actions described above in this clause (a) shall not be applicable to any Restricted Party; (b) make, or in any way participate, directly or indirectly, in any "solicitation" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) of proxies or consents in connection with an amendment to the Certificate of Incorporation that requires a separate class vote of the Class A Common Stock pursuant to the Certificate of Incorporation or the election of Class A Directors, in each case at a time when any Restricted Party is the Beneficial Owner of Class B Common Stock; PROVIDED, HOWEVER, that the limitation contained in this clause (b) shall not apply to any Takeover Transaction to be voted on by the Company's shareholders that is not instituted or proposed by any Restricted Party or any 13D Group of which any Restricted Party is a member; or 6 (c) act, whether alone or in concert with others, to seek to propose to the holders of the Class A Common Stock any merger, business combination or similar transaction with any Restricted Party or any 13D Group of which any Restricted Party is a member; PROVIDED, HOWEVER, that if at any time during the Standstill Period, (x) any Person other than any Restricted Party or any 13D Group of which a Restricted Party is a member has made any written proposal or offer relating to a Takeover Transaction or Change in Control of the Company which has not been rejected within 10 business days by the Board of Directors, (y) the Board of Directors has determined to pursue a Takeover Transaction or Change in Control of the Company and the Board of Directors has not resolved to stop pursuing such Takeover Transaction or Change in Control of the Company, or (z) the Board of Directors or the Company has engaged in any discussions or negotiations with, or provided any information to, any Person other than any Restricted Party, or any 13D Group of which any Restricted Party is a member, with respect to a Takeover Transaction or Change in Control of the Company and the Board of Directors has not resolved to terminate all such discussions, negotiations and provision of information, then, for so long as such condition continues to apply, the limitation on the actions described above in this clause (c) shall not be applicable to any Restricted Party; Section 2.2 PURCHASES BY NBC PARENT. So long as the Beneficial Ownership of the Restricted Parties would not thereafter exceed the Standstill Limit, if such purchaser or any of its Subsidiaries shall purchase any of the Class A Common Stock, the Company shall permit NBC Parent and its Affiliates, upon request, to convert any or all of their shares of Class A Common Stock into shares of Class B Common Stock, subject to such purchaser's agreeing to be bound by the terms and conditions of this Agreement to the same extent and as if it were NBC. Section 2.3 DISAPPLICATION OF STANDSTILL LIMIT. Notwithstanding anything in this Agreement to the contrary, (a) this Article II shall not prohibit or restrict any of the following: (i) any action specifically permitted or required to be taken by any Restricted Party pursuant to the Certificate of Incorporation, (ii) actions taken by any Class B Director or, after there is no longer any Class B Director, any member of the Board of Directors or any officer of the Company, in each case who was nominated or designated by any Restricted Party acting in such capacity and (iii) the exercise by the Restricted Parties of their voting rights with respect to any shares of Voting Securities they Beneficially Own. (b) no Restricted Party shall be deemed to have violated any provision of this Article II by virtue of any increase in the aggregate percentage of the Total Current Voting Power of the Company represented by Shares if such increase is the result of a recapitalization of the Company, a repurchase of securities by the Company or other actions taken by the Company or any of its Affiliates that have the effect of reducing the Total Current Voting Power. (c) nothing in this Agreement shall prohibit (i) the acquisition or holding of securities or rights in the ordinary course of business by any employee benefit plan whose 7 trustees, investment managers or similar advisors are not Restricted Parties, (ii) the consummation of any transaction expressly provided for in the Merger Agreement or the Implementing Agreements, (iii) directors, officers and employees of the Restricted Parties from communicating with directors, officers and employees of the Company or its Affiliates on matters related to or governed by the Merger Agreement, the Implementing Agreements or other operational matters, (iv) the Restricted Parties from communicating with any member of the Board of Directors or any officer of the Company who was nominated or designated by any Restricted Party or (v) the Restricted Parties from communicating with the other members of the Board of Directors, the Chairman of the Board of Directors or the Chief Executive Officer of the Company, so long as such communication is conveyed in confidence and does not require public disclosure by the Restricted Parties or, in the reasonable belief of the Restricted Party making such communication, by the Company. ARTICLE III TRANSFERS BY NBC Section 3.1 RESTRICTIONS ON TRANSFER. Unless NBC and its Affiliates Beneficially Own in the aggregate less than 5% of the Total Current Voting Power of the Company, or until the Restricted Parties Beneficially Own in the aggregate at least 90% of the Total Current Voting Power, NBC agrees that from the date of this Agreement until the earlier of (x) the fifth anniversary of the date of this Agreement, or (y) the occurrence of a Standstill Termination Event specified in clause (iv) or (v) of the definition thereof, without first obtaining the prior approval of the Class A Directors of the Company, specifically expressed in a resolution adopted by a majority of the Class A Directors of the Company, NBC will not, and NBC will cause each Person that is or becomes a Restricted Party and each 13D Group of which any Restricted Party is a member not to, directly or indirectly, sell, transfer, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise dispose of (or make any exchange, gift, assignment or pledge of) (collectively, a "transfer") any of its Shares, except as and to the extent permitted under the Securities Act and other applicable securities laws to: (i) the Company, (ii) another Person that is or becomes a Restricted Party so long as such transferee shall execute an agreement in form and substance reasonably satisfactory to the Company providing that such transferee shall be bound by and shall fully comply with the terms of this Agreement in the same manner and to the same extent as applicable to NBC, and agrees to transfer such Shares to another Restricted Party if it ceases to be a Restricted Party, (iii) pursuant to a Third Party Tender Offer, (iv) pursuant to a merger, consolidation or reorganization to which the Company is a party, (v) in a BONA FIDE public distribution or bona fide underwritten public offering, (vi) pursuant to Rule 144 of the Securities Act to any one or more Persons that, to the best knowledge of the Restricted Parties after due and careful inquiry, are not Company Competitors or (vii) to an Eligible Purchaser in a private sale or pursuant to Rule 144A of the Securities Act; PROVIDED, HOWEVER, that, in the case of any transfer pursuant to clause (vii), such transfer does not result in, to the best knowledge of the Restricted Parties after due and careful inquiry, any Person other than an Eligible Purchaser acquiring, after giving effect to such transfer, 8 Beneficial Ownership, individually or in the aggregate with any of its Affiliates or any 13D Group of which the Eligible Purchaser or any of its Affiliates is a member, 19.9% or more of the Total Current Voting Power of the Company. For as long as the transfer restrictions in the immediately preceding sentence remain in effect, of the 29,833,788 shares of Common Stock Beneficially Owned by the Restricted Parties on the date hereof (the "Restricted Shares"), the Restricted Parties will not transfer pursuant to clauses (v), (vi) and (vii) more than an aggregate of (1) 2,500,000 Restricted Shares on or prior to the one year anniversary of the date hereof, (2) 5,000,000 Restricted Shares on or prior to the two year anniversary of the date hereof, or (3) 7,200,000 Restricted Shares on or prior to the three year anniversary of the date hereof (it being understood that the restrictions contained in this sentence will not apply to any shares of Common Stock first acquired by the Restricted Parties after the date hereof). Any transfer or attempted transfer which is not in compliance with this Agreement shall be null and void AB INITIO and neither the Company nor any transfer agent of such securities shall give any effect thereto in its stock records. Section 3.2 ENDORSEMENT OF CERTIFICATES. Upon the execution of this Agreement, in addition to any other legend that is required pursuant to the Merger Agreement and the transactions contemplated thereby or that the Company may deem advisable under the Securities Act and certain state securities laws, all certificates representing Shares shall be endorsed at all times as follows: "SUCH SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF THE GOVERNANCE AND INVESTOR RIGHTS AGREEMENT DATED AS OF NOVEMBER 30, 1999 BETWEEN NATIONAL BROADCASTING COMPANY, INC. AND THE COMPANY, COPIES OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY." Section 3.3 STOCK PURCHASE RIGHTS. (a) NEW ISSUANCES. If at any time after the date hereof the Company shall issue any New Securities (as defined below in this subsection (a)), at the time of any such issuance, for so long as there shall be outstanding shares of Class B Common Stock of the Company, NBC shall have the option (the "Option") to purchase that number of New Securities (the "Option Securities") in an amount sufficient for NBC and its Affiliates to maintain in the aggregate their then Proportionate Percentage (as defined below in this subsection (a)) at that time. The Option may be exercised by NBC or, at NBC's discretion, may be transferred to or exercised by any Person that is or becomes a Restricted Party, so long as such transferee or such Person exercising shall execute an agreement in form and substance reasonably satisfactory to the Company providing that such transferee or such Person exercising shall be bound by and shall fully comply with the terms of this Agreement in the same manner and to the same extent as applicable to NBC, and agrees to transfer the rights hereunder to another Restricted Party if it ceases to be a Restricted Party, but the Option may not be transferred to or exercised by any other Person. If the New Securities are additional shares of Class A Common Stock, then the Option Securities shall be additional shares of Class B Common Stock. The purchase 9 price for the Option Securities shall be paid in immediately available United States funds and shall be equal to (i) the per share price at which the Company is selling the New Securities, if the consideration for such sale is cash, or (ii) the Fair Market Value of the New Securities, if the consideration for such sale is not cash. For purposes of this Agreement, the terms set forth below shall have the following meanings: "Fair Market Value" shall mean, with respect to the Class A Common Stock or other New Securities, the following: where there exists a public market for the Class A Common Stock or other New Securities, the Fair Market Value shall be (A) the closing price for a share of Class A Common Stock or other New Securities, as the case may be, for the last market trading day prior to the time of the determination (or, if no closing price was reported on that date, on the last trading date on which a closing price was reported) on the stock exchange determined by the Board of Directors to be the primary market for the Class A Common Stock or other New Securities, as the case may be, or the Nasdaq National Market, whichever is applicable, or (B) if the Class A Common Stock or other New Securities, as the case may be, is not traded on any such exchange or national market system, the average of the closing bid and asked prices of a share of Class A Common Stock or other New Securities, as the case may be, on the Nasdaq Small Cap Market for the day prior to the time of the issuance (or, if no such prices were reported on that date, on the last date on which such prices were reported), in each case, as reported in THE WALL STREET JOURNAL or such other source as the Board of Directors deems reliable. In the absence of an established market of the type described in the preceding sentence for the Class A Common Stock or in the absence of an established market of similar type for any other New Securities, the Fair Market Value thereof shall be determined in good faith by the Board of Directors. For purposes of this Section 3.3, the Fair Market Value of Class B Common Stock shall be equivalent to the Fair Market Value of Class A Common Stock. "New Securities" shall mean any authorized but unissued shares and any treasury shares of Common Stock, any new class of common stock or preferred stock (if and only if such preferred stock either votes generally with the common stock for the election of directors or does not have dividends that are limited to a specific dividend vote) and all rights, options, or warrants to purchase Common Stock or any new class of common stock or such preferred stock and securities of any type whatsoever that are, or may become, exercisable for or convertible into Common Stock or any new class of common stock or such preferred stock; PROVIDED, HOWEVER, that the term "New Securities" does not include: (i) the grant or issue now or hereafter of any options to purchase shares of Common Stock or securities convertible into shares of Common Stock pursuant to any employee option plan or other employee benefit but does include any shares of Common Stock or securities convertible into shares of Common Stock issued upon exercise of any such options; (ii) securities outstanding as of the date hereof; or (iii) shares of Common Stock issued pursuant to any reclassification, stock split or stock dividend. 10 "Proportionate Percentage" shall mean a percentage equal to a fraction, the numerator of which is the aggregate number of shares of Common Stock Beneficially Owned by NBC and its Affiliates and the denominator of which is the total number of outstanding shares of Common Stock of the Company immediately prior to the issuance of New Securities. (b) FRACTIONAL SHARES. No fractional shares of Option Securities shall be issued upon exercise of the Option. In lieu of fractional shares, the Company shall round the number of Option Securities to be purchased to the nearest whole number and adjust the purchase price for the Option Securities accordingly. (c) EXERCISE OF OPTION. The Company shall use reasonable effort to give notice (the "Option Notice") to NBC as soon as reasonably practicable either before or after the issuance of the New Securities, specifying the amount and type of securities to be issued and the price per share and all other material terms of the issuance; PROVIDED, HOWEVER, that any Option Notice given by the Company, with respect to securities issued pursuant to the exercise of options to purchase shares of Common Stock or securities convertible into shares of Common Stock, shall be given only on an annual basis within 90 days after the end of the fiscal year in which such securities were issued and as to the aggregate number of securities issued during such period in respect of such options. If NBC desires to exercise the Option, then it shall give written notice (the "Exercise Notice") to the Company within 30 days after delivery of the Option Notice by the Company specifying the amount of securities that it desires and is entitled to purchase. The closing for the purchase and sale of the Option Securities shall occur at a place and on a date mutually agreed upon by the Company and NBC, which date shall be within fifteen days following the date of delivery of the Exercise Notice. If NBC does not deliver the Exercise Notice in accordance with the 30 day period specified in this subsection (c) of Section 3.3, then the rights of NBC to exercise the Option with respect to that issuance of New Securities shall terminate. ARTICLE IV OTHER COVENANTS Section 4.1 FCC MATTERS. The Company agrees that, except with the prior written consent of NBC, the Company and its Affiliates shall not, directly or indirectly, take any action that would cause any ownership interest in any of the following to be attributable to NBC or its Affiliates for purposes of FCC regulations: (i) a U.S. broadcast radio or television station, (ii) a U.S. cable television system, (iii) a U.S. "daily newspaper" (as such term is defined in Section 73.3555 of the rules and regulations of the Federal Communications Commission, as the same may be amended from time to time), (iv) any U.S. communications facility operated pursuant to a license granted by the Federal Communications Commission ("FCC") and subject to the provisions of Section 310(b) of the Communications Act of 1934, as amended, or (v) any other business which is subject to FCC regulations under which the ownership of a Person may be subject to limitation or restriction as a result of the interest in such business being attributed to such Person. 11 Section 4.2 CORPORATE INTEGRITY POLICY. The Company shall adopt the Corporate Integrity Policy of NBC. Section 4.3 LISTING ON NASDAQ OR SECURITIES EXCHANGE. The Company shall list any shares of Class A Common Stock issuable upon conversion of the Class B Common Stock or the Company Convertible Note on Nasdaq or on such other national securities exchange on which shares of Common Stock are then listed. The Company will at its expense cause all shares of Class A Common Stock issued upon conversion of the Class B Common Stock or the Company Convertible Note to be listed at the time of such issuance on Nasdaq and/or such other securities exchange shares of Class A Common Stock are then listed on and shall maintain such listing. ARTICLE V BOARD ACTION Section 5.1 BOARD REPRESENTATION RIGHTS. If all of the Class B Common Stock has been converted into Class A Common Stock, so long as NBC or its Affiliates Beneficially Own in the aggregate at least 5% of the Total Current Voting Power of the Company, NBC shall have the right to designate as nominees for election to the Board of Directors, commencing with the first meeting of stockholders following the conversion of the shares of Class B Common Stock of the Company into shares of Class A Common Stock of the Company pursuant to the Certificate of Incorporation, that number of persons equal to the greater of (i) one, or (ii) that number determined by multiplying the then current number of directors of the Company by the percentage of Total Current Voting Power then owned by NBC and its Affiliates, but which number shall at all times be less than a majority of the total number of members of the Board of Directors of the Company unless NBC and its Affiliates Beneficially Own a majority of the Total Current Voting Power of the Company. If the calculation set forth in clause (ii) of the preceding sentence results in other than a whole number, NBC shall be permitted to designate the nearest whole number of person(s) as designee(s). The Company shall, subject to the fiduciary duties of the directors of the Company, include in the slate of nominees recommended by the Company's management to stockholders for election as directors of the Company such designee(s) of NBC. The Company shall use its best efforts to cause its directors and management to vote pursuant to this Section 5.2 hereof all shares for which the Company's directors and management hold proxies or are otherwise entitled to vote in favor of the election of such designee(s) of NBC. The Company shall give the same scope and degree of support and use the same efforts to encourage the stockholders to vote in favor of such designee(s) of NBC as it gives and uses with respect to the designees of management. ARTICLE VI MISCELLANEOUS Section 6.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and assigns of the parties hereto. Except as set forth herein, NBC may not assign any of its 12 rights hereunder to any Person other than by operation of law, in which case the assignee shall be subject to all of the provisions of this Agreement. The Company may not assign any of its rights hereunder to any other Person, other than by operation of law, in which case the assignee shall be subject to all of the provisions of this Agreement. Section 6.2 AMENDMENT; WAIVER OF COMPLIANCES; CONFLICTS. (a) This Agreement may be amended only by a written instrument duly executed by NBC and the Company, having first obtained the prior approval of the Class A Directors of the Company, specifically expressed in a resolution adopted by a majority of the Class A Directors of the Company. (b) Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefits thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. (c) In the event of any conflict between the provisions of this Agreement and the provisions of any other agreement, the provisions of this Agreement shall govern and prevail. Section 6.3 NOTICES. All notices and other communications provided for hereunder shall be in writing and delivered by hand or sent by first class mail or sent by telecopy (with such telecopy to be confirmed promptly in writing sent by first class mail), sent as follows: (i) If to NBC, addressed to: National Broadcasting Company, Inc. 30 Rockefeller Plaza New York, New York 10012 Attention: Thomas Rogers Telecopy: (212) 664-3915 with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3954 Attention: Richard Capelouto, Esq. Telecopy: (212) 455-2502 13 (ii) If to the Company, addressed to: Xenon 2, Inc. 300 Montgomery Street, Suite 300 San Francisco, California 94104 Attention: Chris Kitze Telecopy: (415) 288-2578 with a copy to: Morrison & Foerster LLP 425 Market Street San Francisco, California 94105-2482 Attention: Bruce Alan Mann, Esq. Telecopy: (415) 268-7522 Morrison & Foerster LLP 1290 Avenue of the Americas New York, New York 10104 Attention: Allen L. Weingarten, Esq. Telecopy: (212) 468-7900 or to such other address or addresses or telecopy number or numbers as any of the parties hereto may most recently have designated in writing to the other parties hereto by such notice. All such communications shall be deemed to have been given or made when so delivered by hand or sent by telecopy, or three business days after being so mailed. Section 6.4 ENTIRE AGREEMENT: GOVERNING LAW. (a) This Agreement and the other writings referred to herein or delivered pursuant hereto which form a part hereof contain the entire agreement among the parties hereto with respect to the subject transactions contemplated hereby and supersede all prior oral and written agreements and memoranda and undertakings among the parties hereto with regard to this subject matter. (b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF). Section 6.5 INJUNCTIVE RELIEF. The parties acknowledge that a violation of any of the terms of this Agreement will cause the other irreparable injury for which an adequate remedy at law is not available. Therefore, the parties agree that each party shall be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction, restraining the other from committing any violations of the provisions of this Agreement. 14 Section 6.6 EXPENSES. The Company and NBC shall bear their own expenses incurred with respect to this Agreement and the transactions contemplated hereby. Section 6.7 HEADINGS. The Section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Section 6.8 SEVERABILITY. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions will not be affected thereby. Section 6.9 RECAPITALIZATIONS, EXCHANGES, ETC. AFFECTING THE SHARES. The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Shares and to any and all securities of the Company or any successor or assignee of the Company (whether by merger, consolidation, sale of assets, or otherwise) which may be issued in respect of, in exchange for, or in substitution of, such securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, reclassifications, recapitalizations, reorganizations and the like occurring after the date hereof. Section 6.10 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. XENON 2, INC. By: /s/ Chris Kitze --------------------------------- Name: Chris Kitze Title: Chief Executive Officer NATIONAL BROADCASTING COMPANY, INC. By: /s/ Mark W. Begor --------------------------------- Name: Mark W. Begor Title: Executive Vice President 16 TABLE OF CONTENTS
SECTION HEADING PAGE ARTICLE I CERTAIN DEFINITIONS.....................................................................1 ARTICLE II STANDSTILL PROVISIONS..................................................................6 Section 2.1 Restrictions on NBC's Activities Regarding the Company and its Stock............6 Section 2.2 Purchases by NBC Parent.........................................................7 Section 2.3 Disapplication of Standstill Limit..............................................7 ARTICLE III TRANSFERS BY NBC......................................................................8 Section 3.1 Restrictions on Transfer........................................................8 Section 3.2 Endorsement of Certificates.....................................................9 Section 3.3 Stock Purchase Rights...........................................................9 ARTICLE IV OTHER COVENANTS.......................................................................11 Section 4.1 FCC Matters....................................................................11 Section 4.2 Corporate Integrity Policy.....................................................12 Section 4.3 Listing on Nasdaq or Securities Exchange.......................................12 ARTICLE V BOARD ACTION...........................................................................12 Section 5.1 Board Representation Rights....................................................12 ARTICLE VI MISCELLANEOUS.........................................................................12 Section 6.1 Successors and Assigns.........................................................12 Section 6.2 Amendment; Waiver of Compliances; Conflicts....................................13 Section 6.3 Notices........................................................................13 Section 6.4 Entire Agreement: Governing Law................................................14 Section 6.5 Injunctive Relief..............................................................14 Section 6.6 Expenses.......................................................................15 Section 6.7 Headings.......................................................................15 Section 6.8 Severability...................................................................15 Section 6.9 Recapitalizations, Exchanges, Etc. Affecting the Shares........................15 Section 6.10 Counterparts...................................................................15
EX-7 8 EXHIBIT 7 Exhibit 7 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and entered into as of November 30, 1999, by and among NBC Internet, Inc., a Delaware corporation (formerly known as Xenon 2, Inc., and together with is successors and assigns, "NBCI"), National Broadcasting Company, Inc., a Delaware corporation (together with its successors and assigns, "NBC"), GE Investments Subsidiary, Inc., a Delaware corporation ("GE SUB"), CNET, Inc. (together with its successors and assigns, "CNET"), Flying Disc Investments Limited Partnership, a Nevada limited partnership ("DISC"), Mr. Chris Kitze ("KITZE") and each other person who becomes a holder hereunder (collectively, with NBC, GE Sub, CNET, Disc and Kitze, the "HOLDERS"). RECITALS WHEREAS, Xoom.com, Inc., a Delaware corporation ("XOOM"), NBCi, Xenon 3, Inc., a Delaware corporation ("XENON 3"), Snap! LLC, a Delaware limited liability company ("SNAP"), and CNET, are parties to an Agreement and Plan of Contribution and Merger, dated as of May 9, 1999, as amended (the "MERGER AGREEMENT"), pursuant to which, among other things, the parties thereto have agreed that (i) Xenon 3 will merge with and into Xoom, with Xoom as the surviving corporation, and each outstanding share of common stock, par value $0.0001 per share, of Xoom (the "COMMON STOCK") will be converted into the right to receive one share of Class A common stock, par value $0.0001 per share, of NBCi (the "CLASS A COMMON STOCK") and (ii) CNET will contribute its ownership interest in Snap to NBCi in exchange for 7,147,584 shares of Class A Common Stock; WHEREAS, Xoom, NBCi, NBC, Neon Media Corporation, a Delaware corporation ("NMC"), and GE Sub, are parties to a Second Amended and Restated Agreement and Plan of Contribution, Investment and Merger, dated as of July 8, 1999, as amended (the "CONTRIBUTION AGREEMENT" and together with the Merger Agreement, the "MERGER AGREEMENTS"), pursuant to which, among other things, the parties thereto have agreed that (i) NMC will merge with and into NBCi, with NBCi as the surviving corporation and each share of NMC common stock will be converted into one share of Class B Common Stock of NBCi (the "CLASS B COMMON STOCK") which will result in the issuance of 12,173,111 shares of Class B Common Stock to NBC Multimedia Inc., a wholly owned subsidiary of NBC, (ii) a subsidiary of NBC will transfer its ownership interest in Snap and certain other assets to NBCi in exchange for 11,417,569 shares of Class B Common Stock and a convertible note from NBCi which will be convertible into 471,031 shares of Class B Common Stock and (iii) an affiliate of NBC will purchase a convertible note from NBCi, which will be convertible into 5,338,357 shares of Class B Common Stock, in exchange for the assignment to NBCi of a note issued by NBC; and WHEREAS, the execution and delivery of this Agreement by the parties hereto is a condition to the closing of the transactions contemplated by the Merger Agreements. NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein and in the Merger Agreements, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: Section 1. DEFINITIONS. For purposes of this Agreement, the following capitalized terms have the following meanings: "INITIAL CNET DEMAND": A Demand Notice delivered by CNET pursuant to Section 3(a)(iv) or 3(a)(v). "INITIAL HOLDERS": NBC, GE Sub, CNET, Disc and Kitze. "PROSPECTUS": The prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and all other amendments and supplements to such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus. "REGISTRABLE SECURITIES": All shares of Class A Common Stock (i) held by the Initial Holders from time to time, (ii) held by transferees of the Initial Holders, but only with respect to securities transferred in accordance with Section 11(e); (iii) issuable by NBCi or (iv) issued or issuable upon the conversion of Class B Common Stock, including shares of Class B Common Stock issuable to NBC or its affiliates upon conversion of the convertible notes held on the date hereof, into Class A Common Stock, excluding in each case shares of Class A Common Stock that have been disposed of pursuant to a Registration Statement relating to the sale thereof that has become effective under the Securities Act or pursuant to Rule 144 or Rule 145 under the Securities Act. Registrable Securities shall also include any shares of Class A Common Stock or other securities (or shares of Class A Common Stock underlying such other securities) that may be received by the Holders (x) as a result of a stock dividend on or stock split of Registrable Securities or Class B Common Stock or (y) on account of Registrable Securities or Class B Common Stock in a recapitalization of or other transaction involving NBCi. "REGISTRATION STATEMENT": Any registration statement of NBCi under the Securities Act that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the related Prospectus, any preliminary prospectus, all amendments and supplements to such registration statement (including post-effective amendments), all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. "SEC": The Securities and Exchange Commission. "SECURITIES ACT": The Securities Act of 1933, as amended. "UNDERWRITTEN OFFERING": A distribution, registered pursuant to the Securities Act, in which securities of NBCi are sold to the public through one or more underwriters. "VOTING AGREEMENT": means the Voting Agreement dated as of May 9, 1999, among Xoom, certain holders of the capital stock of NBCi, NBC and CNET, as the same may be amended, supplemented or otherwise modified from time to time. Section 2. SHELF REGISTRATION OF RESALES. (a) SHELF REGISTRATION STATEMENT. Within 45 days of receipt by NBCi of a written notice as described in Section 3(a) which is requested to be effected as a shelf registration pursuant to Rule 415 under the Securities Act (such Demand Registration, a "SHELF REGISTRATION") (which request shall not be made at any time prior to the later of the twelve month anniversary of the date hereof or the date on which NBCi first becomes eligible to file a registration statement on Form S-3), NBCi shall file with the SEC a registration statement for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (a "SHELF REGISTRATION STATEMENT") covering all of the Registrable Securities of the requesting Holder included in the Demand Notice and any additional Registrable Securities requested to be included by the other Holders pursuant to the terms of Sections 3(c) and 4(b) (collectively, in such capacity, the "REGISTERING HOLDERS"). The Shelf Registration Statement shall be on the appropriate form and shall comply as to form in all material respects with the requirements of the Securities Act and the sales and regulations promulgated thereunder, permitting registration of such Registrable Securities for resale by the Registering Holders in the manner designated by them (including, without limitation, one or more Underwritten Offerings). NBCi shall use all commercially reasonable efforts to cause the Shelf Registration Statement to be declared effective by the SEC as promptly as practicable. NBCi will notify the Registering Holders in writing when such Shelf Registration Statement becomes effective. (b) MAINTENANCE OF EFFECTIVENESS. NBCi agrees to use commercially reasonable efforts to keep the Shelf Registration Statement (including the preparation and filing of any amendments and supplements necessary for that purpose) continuously effective until the earlier of (a) the date on which the Registering Holders (or distributees or transferees of such Registering Holders) no longer hold any Registrable Securities or (b) the date on which all the Registrable Securities of the Registering Holders are eligible for sale pursuant to Rule 144(k) (or any successor provision) or in one day without registration pursuant to Rule 144(e) (or any successor provision) under the Securities Act (such period, the "EFFECTIVE PERIOD"). Each Registering Holder seeking to offer and sell Registrable Securities upon exercise of the rights hereunder agrees to provide information to NBCi in a timely manner regarding the proposed distribution by such Registering Holder of the Registrable Securities and such other information reasonably requested by NBCi in connection with the preparation of the Shelf Registration Statement. If the Shelf Registration Statement ceases to be effective for any reason or at any time during the Effective Period (other than because of the sale of all the securities registered thereunder), NBCi shall use commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof. Upon written request from a Registering Holder during the Effective Period, NBCi shall, subject to the other provisions of this Agreement, promptly supplement the Shelf Registration Statement to reflect resales of Class A Common Stock by any distributees or other transferees of any Holder who received their Class A Common Stock in accordance with this Agreement and who have been identified in writing to NBCi. 3 (c) OFFERINGS AND SALES. At any time during the Effective Period, any Registering Holder may exercise its Shelf Registration rights hereunder with respect to the Registrable Securities. If any Registering Holder desires to offer and sell Registrable Securities under the Shelf Registration Statement pursuant to an underwritten public offering, such Registering Holder shall deliver a written notice (the "REGISTRATION NOTICE") to NBCi at least 20 days prior to the date on which such Registering Holder desires to consummate the sale of Registrable Securities. Any Registration Notice shall be subject to revocation by the Registering Holder initiating the request by delivery of a subsequent written notice to NBCi no later than the fifth business day prior to the contemplated offering commencement date. Upon receipt of a Registration Notice, NBCi shall, within 30 days of receipt thereof, give written notice to the other Registering Holders of NBCi's receipt thereof. Within 15 days of receipt of such a notice from NBCi, any other Registering Holder desiring to offer and sell any Registrable Securities in the subject offering shall give written notice to NBCi, the Registering Holder who delivered the Registration Notice to NBCi, and the lead managing underwriter, if any, which notice shall specify the number of shares of Registrable Securities such Registering Holder desires to offer for sale. NBCi shall not be permitted to participate in such an offering without the written consent of the Registering Holder initiating the offering (which consent shall not be unreasonably withheld). In the event the Registrable Securities requested to be included by the Registering Holders in the aggregate exceeds the number of Registrable Securities to be included in the Underwritten Offering, priority will be determined in accordance with Section 3(c). (d) POSTPONEMENT OF SHELF REGISTRATION. NBCi will be entitled to postpone the obligation to file any Shelf Registration Statement for a reasonable period not in excess of 90 calendar days if NBCi's Board of Directors determines, in the good faith exercise of its business judgment, that such registration and offering would materially interfere with BONA FIDE financing plans or strategic acquisition, disposition or alliance of NBCi that would require disclosure of information, the premature disclosure of which could materially and adversely affect NBCi. Notwithstanding the foregoing, in no event shall the aggregate number of days during any period of 12 consecutive months during which the Registering Holders are subject to (i) postponement pursuant to this Section 2(d), (ii) postponement pursuant to Section 3(d) and (iii) Black-Out pursuant to Section 7 exceed 90 days. If NBCi postpones the filing of a Shelf Registration Statement, it will promptly notify the Holders in writing (i) when the events or circumstances permitting such postponement have ended and (ii) that the decision to postpone was made by the Board of Directors of NBCi in accordance with this Section 2(d). Section 3. DEMAND REGISTRATION. (a) REQUESTS FOR REGISTRATION BY HOLDERS. At any time and from time to time during which there is no Shelf Registration Statement that is effective under the Securities Act so as to permit the offer and sale of all Registrable Securities thereunder, subject to the conditions set forth in this Agreement one or more Holders will have the right, by written notice delivered to NBCi (a "DEMAND NOTICE"), to require NBCi to register Registrable Securities under and in 4 accordance with the provisions of the Securities Act (a "DEMAND REGISTRATION"), PROVIDED that effective on the date of this Agreement and subject to the conditions set forth herein (i) NBC, on behalf of NBC or GE Sub, may not make more than four (4) Demand Registrations in total, one of which can be made on Form S-1 and one of which can be for a Shelf Registration, and CNET and Kitze, on behalf of Kitze or Disc (for Registrable Securities held by Disc on the date hereof), may not make more than three (3) Demand Registrations each, of which, in the case of each of CNET and Kitze, one of which can be for a Shelf Registration and of which two (2) can be made on Form S-1 in the case of CNET and its transferees, and one (1) can be made on Form S-1 in the case of Kitze, Disc and their respective transferees, (ii) no Demand Notice may be given prior to six (6) months after the effective date of the immediately preceding Demand Registration, (iii) no such Demand Registration may be required unless the Holders requesting such Demand Registration provide to NBCi a certificate (the "AUTHORIZING CERTIFICATE"), seeking to include Registrable Securities in such Demand Registration with a market value of at least $25,000,000 (or $50,000,000 in the case of a Demand Notice for a Shelf Registration) (calculated based on the average closing sale price of such securities on the principal securities exchange or quotation system where such securities are listed on the five business days immediately preceding the date of the Demand Notice) as of the date the Demand Notice is given, (iv) if a Demand Notice is delivered to NBCi during the 60 day period commencing on the closing date of the Contribution Agreement by CNET, such Demand Notice will be given priority over any Demand Registrations or Shelf Registrations of Registrable Securities until such registration for CNET is effected, (v) if a Demand Notice is delivered to NBCi during the 60 day period commencing on the closing date of the Contribution Agreement from a Holder other than CNET, NBCi will provide CNET with the opportunity to deliver a Demand Notice, which Demand Notice by CNET will be given priority over the previously delivered Demand Notice and any other Demand Notice until such registration for CNET is effected, (vi) if a Demand Notice is delivered to NBCi during the 12 month period commencing on the closing date of the Contribution Agreement, such Demand Registration shall be an Underwritten Offering in accordance with Section 10, and (vii) in any Underwritten Offering, shares may be excluded by the underwriters based on market conditions and marketing factors. The Authorizing Certificate shall set forth (A) the name of each Holder signing such Authorizing Certificate, (B) the number of Registrable Securities held by each such Holder, and, if different, the number of Registrable Securities such Holder has elected to have registered, and (C) the intended methods of disposition of the Registrable Securities. Notwithstanding the foregoing, a good faith decision by a Holder to withdraw Registrable Securities from registration will not affect NBCi's obligations under this Section 3(a) unless the amount remaining to be registered has a market value of less than $25,000,000 (or $50,000,000 in the case of a Shelf Registration) (calculated as aforesaid). (b) FILING AND EFFECTIVENESS. NBCi will file a Registration Statement relating to any Demand Registration as soon as practicable but in no event later than 45 days following the date on which the Demand Notice is given, or 90 days in the case of the first Demand Registration, and will use its best efforts to cause the same to be declared effective by the SEC as soon as practicable thereafter. If any Demand Registration is requested to be effected as a Shelf Registration by the Holders demanding such Demand Registration, NBCi will keep the Registration Statement filed in respect thereof effective for the Effective Period. 5 Within ten (10) business days after receipt of such Demand Notice, NBCi will serve written notice thereof (the "NOTICE") to all other Holders and will, subject to the provisions of Section 3(c), include in such registration all Registrable Securities with respect to which NBCi receives written requests for inclusion therein ("REQUEST FOR INCLUSION") within ten (10) business days after receipt of the Notice by the applicable Holder. In the event that any other Holder has the right to request a Demand Registration pursuant to the provisions of Section 3(a), and PROVIDED that more than 60 days have elapsed since the closing date of the Contribution Agreement, if such Request for Inclusion includes a Demand Notice on behalf of such Holder, such Holder will be treated as an initiating Holder for purposes of the Demand Registration. Any Holder will be permitted to withdraw in good faith all or part of the Registrable Securities from a Demand Registration at any time prior to the effective date of such Demand Registration, in which event NBCi will promptly amend or, if applicable, withdraw the related Registration Statement. In the event the withdrawing Holder is the sole initiating Holder of such Demand Registration pursuant to Section 3(a), such demand will count as a Demand Registration of such Holder unless the withdrawing Holder pays all registration expenses in connection with such withdrawn registration as described in Section 8; PROVIDED that in the event there has been a Material Adverse Change in the business or financial condition of NBCi between the date of the Demand Notice relating to such Demand Registration and the date of the withdrawal, NBCi shall pay all registration expenses and such registration shall not be counted as a Demand Registration to which such Holder is entitled pursuant to Section 3(a) hereof. In the event all of the initiating Holders withdraw, such demand will count as a Demand Registration of each such Holder unless, in the case of each such Holder, such Holder pays its pro rata portion of all registration expenses in connection with such withdrawn registration as described in Section 8; PROVIDED that in the event there has been a Material Adverse Change in the business or financial condition of NBCi between the date of the Demand Notice relating to such Demand Registration and the date of the withdrawal, NBCi shall pay all registration expenses and such registration shall not be counted as a Demand Registration to which such Holders are entitled pursuant to Section 3(a) hereof. For the purpose of this Section 3(b), "Material Adverse Change" shall mean any change that, individually or in the aggregate with all other changes, is materially adverse to the business, financial condition or results of operation of NBCi and its subsidiaries taken as a whole other than any change or circumstance arising from a decrease of less than 25% of the closing price of NBCi on the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or the National Market System of Nasdaq from the date of the Demand Notice or the Request for Inclusion, as the case may be. (c) PRIORITY ON DEMAND REGISTRATION. Subject to the provisions set forth in Sections 3(a)(iv) and (v) and Section 3(b) regarding CNET's priority, if Registrable Securities are to be registered pursuant to a Demand Registration, NBCi shall provide written notice to the other Holders and will permit all such Holders who request to be included in the Demand Registration to include any or all Registrable Securities held by such Holders in such Demand Registration. In connection with any Demand Registration, NBCi may include securities for its own account and/or for the account of other holders of NBCi's securities in such registration to the extent agreed to by the underwriters. If the managing underwriter or underwriters of an Underwritten Offering to which such Demand Registration relates advises the Holders that the total amount of Registrable Securities that such Holders intend to include in such Demand 6 Registration is in the aggregate such as to materially and adversely affect the success of such offering, then the number of Registrable Securities to be included in such Demand Registration will, if necessary, be reduced and there will be included in such Underwritten Offering the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters, can be sold without materially and adversely affecting the success of such Underwritten Offering, the Registrable Securities of the Holder or Holders initiating the Demand Registration and NBCi shall receive priority in such Underwritten Offering to the full extent of the Registrable Securities such Holder or Holders (including NBCi) desire to sell, PROVIDED that, in the event the Registrable Securities requested to be included by the initiating Holders and NBCi in the aggregate exceeds the number of Registrable Securities to be included in the Underwritten Offering, then: (i) Registrable Securities requested to be included by CNET in the Initial CNET Demand will comprise the lesser of (A) at least 50% of the Registrable Securities included in such offering or (B) all of the Registrable Securities requested to be included by CNET, with the remainder of the Registrable Securities in such offering being allocated to NBCi and Kitze as a direct holder or as the beneficial owner of Registrable Securities held by Disc as determined in good faith by the mutual agreement of NBCi and Kitze, it being understood that the current intention of such parties is that Kitze's allocation will be in the range of 10% - 15% of the Underwritten Offering; (ii) if any Registration Statement is proposed to be filed by NBCi whether or not for sale for NBCi's own account during the six month period after the Effective Date of the Initial CNET Demand, Registrable Securities requested to be included by CNET will comprise the lesser of (A) at least 25% of the Registrable Securities included in such offering or (B) all of the Registrable Securities requested to be included by CNET; PROVIDED that in no event will CNET be entitled to include more than 1,000,000 Registrable Securities in such offering; PROVIDED FURTHER that, (A) if the number of shares included by CNET is 500,000 or less, then such inclusion shall be in addition to the rights contained in this Section 3 and shall not be deemed the exercise by CNET of one of its Demand Registrations and (B) if the number of shares included by CNET is more than 500,000, then such inclusion shall be deemed the exercise by CNET of one of its Demand Registrations pursuant to this Section 3; and (iii) except as provided in 3(c)(ii) above, following the Initial CNET Demand, or, if no such demand is made, following the 60 day period commencing on the closing date of the Contribution Agreement, (A) Registrable Securities requested to be included by NBCi will comprise the lesser of (1) at least 50% of the Registrable Securities included in such offering or (2) all of the Registrable Securities requested to be included by NBCi and (B) of the remaining securities to be included in such Underwriting Offering, Registrable Securities of each initiating Holder will be included PRO RATA on the basis of the amount of Registrable Securities requested to be included therein by each such Holder. Any 7 remaining allocation available for sale shall be allocated PRO RATA among the other Holders on the basis of the amount of Registrable Securities requested to be included therein by each such Holder. (d) POSTPONEMENT OF DEMAND REGISTRATION. NBCi will be entitled to postpone the obligation to file any Demand Registration for a reasonable period of time not exceeding 90 calendar days (other than the Demand Registration for the Initial CNET Demand [which may be postponed for a reasonable period of time not exceeding 60 calendar days]) if NBCi's Board of Directors determines, in the good faith exercise of its business judgment, that such registration and offering would materially interfere with BONA FIDE financing plans or strategic acquisition, disposition or alliance of NBCi that would require disclosure of information, the premature disclosure of which could materially and adversely affect NBCi. Notwithstanding the foregoing, in no event shall the aggregate number of days during any period of 12 consecutive months during which the Registering Holders are subject to (i) postponement pursuant to this Section 3(d), (ii) postponement pursuant to Section 2(d) and (iii) Black-Out pursuant to Section 7 exceed 90 days [; PROVIDED, HOWEVER, that any postponement with respect to an Initial CNET Demand shall be disregarded in determining the aggregate number of days during any 12-month period]. If NBCi postpones the filing of a Registration Statement, it will promptly notify the Holders in writing (i) when the events or circumstances permitting such postponement have ended and (ii) that the decision to postpone was made by the Board of Directors of NBCi in accordance with this Section 3(d). Section 4. PIGGYBACK REGISTRATION. (a) RIGHT TO PIGGYBACK. If at any time NBCi proposes to file a Registration Statement whether or not for sale for NBCi's own account, on a form and in a manner that would also permit registration of Registrable Securities, including, without limitation, pursuant to Sections 2 and 3 hereof, NBCi shall give to Holders holding Registrable Securities, written notice of such proposed filing at least thirty (30) days before the anticipated filing. The notice referred to in the preceding sentence shall offer Holders the opportunity to register such amount of Registrable Securities as each Holder may request (a "PIGGYBACK REGISTRATION"). Subject to Section 4(b), NBCi will include in each such Piggyback Registration all Registrable Securities with respect to which NBCi has received written requests for inclusion therein. The Holders will be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time prior to the effective date of such Piggyback Registration. NBCi will not be obligated to effect any registration of Registrable Securities under this Section 4 as a result of the registration of any of its securities in connection with mergers, acquisitions, exchange offers, dividend reinvestment, transfers of assets, reclassifications and share purchase plans offered solely to current holders of Class A Common Stock, rights offerings or option or other employee benefit plans. (b) PRIORITY ON PIGGYBACK REGISTRATIONS. NBCi will cause the managing underwriter or underwriters of a proposed Underwritten Offering on behalf of NBCi to permit Holders to include therein all such Registrable Securities requested to be so included on the same 8 terms and conditions as any securities of NBCi included therein. Notwithstanding the foregoing, if the managing underwriter or underwriters of such Underwritten Offering delivers an opinion to the Holders to the effect that (i) the total amount of securities that such Holders and NBCi propose to include in such Underwritten Offering or (ii) the effect of the potential withdrawal of any Registrable Securities by any Holder (except any Holder who has theretofore waived such Holder's right to withdraw all or part of its Registrable Securities pursuant to Section 4(a)) prior to the effective date of the Registration Statement relating to such Underwritten Offering, is such as to materially and adversely affect the success of such offering, then the amount of securities to be included therein for the account of Holders will, if necessary, be reduced and there will be included in such Underwritten Offering the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters, can be sold without materially and adversely affecting the success of such Underwritten Offering. The securities of any Holder or Holders of securities initiating the registration and NBCi shall receive priority in such Underwritten Offering to the full extent of the Registrable Securities such Holder or Holders and NBCi desire to sell and the remaining allocation available for sale, if any, shall be allocated PRO RATA among the other Holders on the basis of the amount of Registrable Securities requested to be included therein by each such Holder; PROVIDED, HOWEVER, if any Registration Statement is proposed to be filed by NBCi whether or not for sale for NBCi's own account during the six month period after the Effective Date of the Initial CNET Demand, Registrable Securities requested to be included by CNET will comprise the lesser of (A) at least 25% of the Registrable Securities included in such offering or (B) all of the Registrable Securities requested to be included by CNET; PROVIDED that in no event will CNET be entitled to include more than 1,000,000 Registrable Securities in such offering; PROVIDED FURTHER that, (A) if the number of shares included by CNET is 500,000 or less, then such inclusion shall be in addition to the rights contained in this Section 3 and shall not be deemed the exercise by CNET of one of its Demand Registrations and (B) if the number of shares included by CNET is more than 500,000, then such inclusion shall be deemed the exercise by CNET of one of its Demand Registrations pursuant to this Section 3. The managing underwriter or underwriters, applying the same standard, may also exclude entirely from such offering all Registrable Securities proposed to be included in such offering to the extent the Registrable Securities are not of the same class as securities of NBCi included in such offering. Section 5. REGISTRATION PROCEDURES. In connection with NBCi's registration obligations pursuant to Sections 2, 3 and 4, NBCi will effect such registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto NBCi will as soon as practicable, but in no event later than 45 days after delivery of the Demand Notice, or 90 days in the case of the initial Demand Registration, and in each case to the extent applicable: (a) prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and use its best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; PROVIDED, HOWEVER, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference) NBCi 9 will furnish to the Holders copies of all such documents proposed to be filed (but excluding schedules, documents to be incorporated or deemed incorporated therein by reference and exhibits, unless requested in writing by such Holders or their counsel), which documents will be subject to the review of such Holders and any underwriters, and NBCi will not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents that, upon filing, will be incorporated or deemed to be incorporated by reference therein) to which any Holder of the Registrable Securities covered by such Registration Statement or the managing underwriter, if any, shall reasonably object on a timely basis; (b) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective as provided herein; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; (c) notify the selling Holders and the managing underwriters, if any, promptly, and (if requested by any such person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of NBCi contained in any agreement contemplated by Section 5(n) (including any underwriting agreement) cease to be true and correct in any material respect, (v) of the receipt by NBCi of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (vi) of the occurrence of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in a Registration Statement, Prospectus or any such document so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (d) use every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification 10 (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment; (e) if requested by the managing underwriters, if any, or any Holder of the Registrable Securities being registered, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders agree should be included therein as may be required by applicable law and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after NBCi have received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; PROVIDED, HOWEVER, that NBCi will not be required to take any actions under this Section 5(e) that are not, in the opinion of counsel for NBCi, in compliance with applicable law; (f) furnish to each selling Holder and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed incorporated therein by reference and all exhibits, unless requested in writing by such Holder, such Holder's counsel or such underwriter); (g) deliver to each selling Holder and the underwriters, if any, without charge as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such persons may reasonably request; and NBCi hereby consents to the use of such Prospectus or each amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto; (h) prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing; use all reasonable efforts to keep such registration or qualification (or exemption therefrom) effective during the period the applicable Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in each such jurisdiction of the Registrable Securities covered by the applicable Registration Statement; PROVIDED, HOWEVER, that NBCi will not be required to (i) qualify to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to service of process in any such jurisdiction where it is not then so subject; (i) cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, shall request at least two business days prior to any sale of Registrable Securities to the underwriters; 11 (j) use all reasonable efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States except as may be required solely as a consequence of the nature of any selling Holder's business, in which case NBCi will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities; (k) upon the occurrence of any event contemplated by Section 5(c)(vi), prepare a supplement or post-effective amendment to each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (l) use its best efforts to cause all Registrable Securities covered by such Registration Statement to be either (i) listed on each securities exchange, if any, on which similar securities issued by NBCi are then listed or, if no similar securities issued by NBCi are then so listed, on the New York Stock Exchange or another national securities exchange if the securities qualify to be so listed or (ii) authorized to be quoted on Nasdaq or the National Market System of Nasdaq, if the securities qualify to be so quoted; (m) as needed, (i) engage an appropriate transfer agent and provide the transfer agent with printed certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number for the Registrable Securities; (n) enter into such customary agreements (including, in the event of an Underwritten Offering, an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other commercially reasonable and customary actions in connection therewith (including, without limitation, entering into and causing its officers, directors and affiliates to enter into customary lock-up agreements and taking other actions reasonably requested by the initiating Holder or, if none, the Holders holding a majority of the Registrable Securities being sold or, in the event of an Underwritten Offering, those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the selling Holders holding such Registrable Securities and the underwriters, if any, with respect to the businesses of NBCi and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference therein, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) obtain opinions of counsel to NBCi and updates thereof, which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the initiating Holder or, if none, the Holders holding a majority of the Registrable Securities 12 being sold, addressed to such selling Holder and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters; (iii) use reasonable efforts to obtain "comfort" letters and updates thereof from the independent certified public accountants of NBCi (and, if necessary, any other certified public accountants of any subsidiary of NBCi or of any business acquired by NBCi for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to each selling Holder and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters in connection with underwritten offerings; and (iv) deliver such documents and certificates as may be reasonably requested by the initiating Holder or, if none, the Holders holding a majority of the Registrable Securities being sold, and the managing underwriters, if any, to evidence the continued validity of the representations and warranties of NBCi and its subsidiaries made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or similar agreement entered into by NBCi. The foregoing actions will be taken in connection with each closing under such underwriting or similar agreement as and to the extent required thereunder; (o) make available for reasonable inspection during normal business hours by a representative of the Holders holding Registrable Securities being sold, any underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such selling Holders or underwriter, all financial and other records, pertinent corporate documents and properties of NBCi and its subsidiaries, and cause the officers, directors and employees of NBCi and its subsidiaries to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; PROVIDED, HOWEVER, that any records, information or documents that are designated by NBCi in writing as confidential at the time of delivery of such records, information or documents will be kept confidential by such persons unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, or (iii) disclosure of such records, information or documents, upon advice of counsel to such person, is otherwise required by law (including, without limitation, pursuant to the requirements of the Securities Act); PROVIDED FURTHER however that in the case of (ii) or (iii) NBCi shall only be required to disclose that portion which counsel advises NBCi is legally required and the Holders shall use their commercially reasonable efforts (at NBCi's expense) to preserve the confidentiality of such documents including, without limitation, by cooperating with NBCi to obtain an appropriate protective order or other reliable assurance that confidentiality will be accorded and maintained to the maximum extent possible; (p) comply with all applicable rules and regulations of the SEC and make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 calendar days after the end of any 12-month period (or 90 calendar days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering, or (ii) if not sold to 13 underwriters in such an offering, commencing on the first day of the first fiscal quarter of NBCi, after the effective date of a Registration Statement, which statements shall cover said 12-month period; (q) take any and all actions necessary to become eligible, and use all reasonable efforts to remain eligible to file registration statements on Form S-3 and do any and all other acts or things necessary or advisable to comply with applicable rules and regulations regarding Form S-3, including, but not limited to, making all filings required by the SEC and complying with any and all time limits in connection therewith; (r) use all reasonable efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if at any time NBCi is not required to file such reports, it will, upon the request of any of the Holders of the Registrable Securities, make publicly available other information so long as necessary to permit sales of Registrable Securities pursuant to Rule 144 and 144A; will take such further action as any Holder of the Registrable Securities may reasonably request, all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rules 144 and 144A; and upon the request of any Holder shall deliver to the such Holder a written statement as to whether it has complied with this paragraph (r); and (s) in connection with any Underwritten Offering, cause appropriate members of management, including, without limitation, NBCi's Chief Executive Officer, to cooperate and participate on a reasonable basis in the underwriters' "road show" conferences related to such offering. Section 6. INFORMATION. NBCi may require each selling Holder of Registrable Securities as to which any registration is being effected pursuant to Section 2, 3 or 4 to furnish to NBCi such information regarding the distribution of such Registrable Securities as NBCi may, from time to time, reasonably request in writing and NBCi may exclude from such registration the Registrable Securities of any selling Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. Each such selling Holder promptly will notify NBCi of the occurrence of any event that makes any of such information untrue in any material respect or that requires making a change in such information so that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statement therein, in light of the circumstances under which they were made, not misleading. Section 7. SUSPENSION. Each Holder will be deemed to have agreed by virtue of its acquisition of Registrable Securities that, in connection with any registrations of Registrable Securities effected pursuant to Section 2, 3 or 4, upon receipt of any notice from NBCi of the occurrence of any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi) ("SUSPENSION NOTICE"), NBCi's obligation to cause any Registration Statement to become effective or to amend or supplement such Registration Statement shall be suspended and such Holder will forthwith discontinue disposition of such Registrable Securities covered by such 14 Registration Statement or Prospectus (a "BLACK-OUT") until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k), or until it is advised in writing (the "ADVICE") by NBCi that the use of the applicable Prospectus may be resumed, and such Holder has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus. Except as expressly provided herein, there shall be no limitation with regard to the number of Suspension Notices that NBCi is entitled to give hereunder; PROVIDED, HOWEVER, that in no event shall the aggregate number of days during any period of 12 consecutive months during which the Holders are subject to (i) postponement pursuant to Section 2(d), (ii) postponement pursuant to Section 3(d) and (iii) Black-Out pursuant to this Section 7 exceed 90 days; PROVIDED, FURTHER, that any postponement with respect to an Initial CNET Demand shall be disregarded in determining the aggregate number of days during any 12-month period]. In the event NBCi shall give a Suspension Notice, the time period prescribed in Section 2 or Section 3 will be extended by the number of days during the time period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received (x) the copies of the supplemented or amended Prospectus contemplated by Section 5(k) or (y) the Advice. Section 8. REGISTRATION EXPENSES. Except as described in Section 3(b), all fees and expenses incident to the performance of or compliance with this Agreement by NBCi will be borne by NBCi whether or not any of the Registration Statements become effective. Such fees and expenses will include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses for compliance with securities or "blue sky" laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing a reasonable number of prospectuses if the printing of such prospectuses is requested by any Holder of Registrable Securities included in any Registration Statement), (iii) messenger, telephone and delivery expenses incurred by NBCi, (iv) fees and disbursements of counsel for NBCi incurred by NBCi, (v) fees and disbursements of all independent certified public accountants referred to in Section 5(n)(iii) (including the expenses of any special audit and "comfort" letter required by or incident to such performance) incurred by NBCi, (vi) Securities Act liability insurance, if any, if customarily incurred and (vii) reasonable fees and expenses of one counsel retained by the Holders in connection with the registration and sale of their Registrable Securities (which counsel will be selected by the Holders of a majority of the Registrable Securities being sold). In addition, NBCi will pay internal expenses (including without limitation all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange or quotation system on which similar securities issued by NBCi are then listed and the fees and expenses of any person, including special experts, retained by NBCi. In no event, however, will NBCi be responsible for any underwriting discount or selling commission with respect to any sale of Registrable Securities pursuant to this Agreement. Section 9. INDEMNIFICATION. 15 (a) INDEMNIFICATION BY NBCi. NBCi will, without limitation as to time, indemnify and hold harmless, to the fullest extent permitted by law, each Holder holding Registrable Securities registered pursuant to this Agreement, the officers, directors and agents and employees of each of them, each person who controls such a Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of any such controlling person, from and against all losses, claims, damages, liabilities, costs (including without limitation the costs of investigation and attorneys' fees) and expenses (collectively, "LOSSES"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or form of Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based upon information furnished in writing to NBCi by such Holder expressly for use therein. (b) INDEMNIFICATION BY HOLDERS. In connection with any Registration Statement in which a Holder is participating, such Holder will furnish to NBCi in writing such information as NBCi reasonably requests for use in connection with any Registration Statement, Prospectus or preliminary prospectus and will indemnify, to the fullest extent permitted by law, NBCi, its directors and officers, agents and employees, each person who controls NBCi (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling persons, from and against all Losses, as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or form of Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to NBCi expressly for use in such Registration Statement, Prospectus or preliminary prospectus and was used by NBCi in the preparation of such Registration Statement, Prospectus or preliminary prospectus. In no event will the liability of any selling Holder hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all expenses) received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. (c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person shall become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such indemnified party shall give prompt notice to the party from which such indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the commencement of any action or proceeding with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; PROVIDED, HOWEVER, that the failure to so notify the indemnifying party will not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced materially by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, 16 that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interest between such indemnified party and any other party represented by such counsel in such proceeding. All fees and expenses (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) will be paid to the indemnified party, as incurred, within five calendar days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). The indemnifying party will not consent to entry of any judgment or enter into any settlement or otherwise seek to terminate any action or proceeding in which any indemnified party is or could be a party and as to which indemnification or contribution could be sought by such indemnified party under this Section 9, unless such judgment, settlement or other termination includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance satisfactory to the indemnified party, from all liability in respect of such claim or litigation for which such indemnified party would be entitled to indemnification hereunder. (d) CONTRIBUTION. If the indemnification provided for in this Section 9 is unavailable to an indemnified party under Section 9(a) or 9(b) in respect of any Losses or is insufficient to hold such indemnified party harmless, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, will, severally but not jointly, contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the indemnifying party or indemnifying parties, on the one hand, and such indemnified party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party or indemnifying parties, on the one hand, and such indemnified party, on the other hand, will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or related to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses will be deemed to include any legal or other fees or expenses incurred by such party in connection with any action or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 9(d) were determined by PRO RATA allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 9(d), an indemnifying party that is a selling Holder will not be required to contribute any amount in excess of the amount by which the net proceeds which the Registrable Securities sold by such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of 17 fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The indemnity, contribution and expense reimbursement obligations of NBCi hereunder will be in addition to any liability NBCi may otherwise have hereunder or otherwise. The provisions of this Section 9 will survive so long as Registrable Securities remain outstanding, notwithstanding any permitted transfer of the Registrable Securities by any Holder thereof or any termination of this Agreement. Section 10. UNDERWRITTEN REGISTRATIONS. (a) INITIAL CNET DEMAND. For the Demand Registration effecting the Initial CNET Demand, CNET shall have the right to appoint the investment banker or manager to act as lead underwriter for the Underwritten Offering, PROVIDED that (i) such underwriter is a first-class, nationally recognized underwriter who is prepared to underwrite the offering and (ii) NBCi has given its prior written consent to the appointment, which consent shall not be unreasonably withheld; PROVIDED that an underwriter's lack of commitment to provide customary market-making and research support services to NBCi following the offering would constitute a reasonable ground for NBCi to withhold its consent. For the Demand Registration effecting the Initial CNET Demand, NBCi shall have the right to appoint the investment banker or manager to act as co-lead underwriter for the Underwritten Offering, PROVIDED that such underwriter is a first-class, nationally recognized underwriter who is prepared to underwrite the offering. The co-lead underwriters for the Demand Registration effecting the Initial CNET Demand shall be treated equally in terms of percentage of the gross underwriting spread. Further, CNET and NBCi may each appoint one investment banker to act as co-manager for the Underwritten Offering PROVIDED that (i) such manager is a first-class, nationally recognized manager who is prepared to manage the offering and (ii) NBCi has given its prior written consent to the appointment of the co-manager by CNET, which consent shall not be unreasonably withheld; PROVIDED that a co-manager's lack of commitment to provide customary market-making and research support services to NBCi following the offering would constitute a reasonable ground for NBCi to withhold its consent. (b) OTHER DEMAND REGISTRATIONS. If any of the Registrable Securities included in any Demand Registration other than the Initial CNET Demand are to be sold in an Underwritten Offering, the Holders holding a majority of the Registrable Securities included in the Demand Notice may select an investment banker or investment bankers and manager or managers to manage the Underwritten Offering. If any Piggyback Registration is an Underwritten Offering, NBCi will have the exclusive right to select the investment banker or investment bankers and managers to administer the offering. Each party hereto agrees that, in connection with any Underwritten Offering hereunder, it shall undertake to offer customary indemnification to the participating underwriters. No Holder of Registrable Securities shall be entitled to participate in an Underwritten Offering unless such Holder enters into, and performs its obligations under, one or more underwriting agreements and any related agreements and documents in the form that such Holder shall agree to with the lead managing underwriter of the transaction. If any Holder disapproves of the terms of any underwriting, it may elect, prior to the execution of any 18 underwriting agreement, to withdraw therefrom by written notice to NBCi and the lead managing underwriter. Section 11. MISCELLANEOUS. (a) REMEDIES. In the event of a breach by any party of its obligations under this Agreement, each party, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. Each party agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of any provision of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it will waive the defense that a remedy at law would be adequate. (b) AMENDMENTS AND WAIVERS. The provisions of Section 2 of this Agreement may only be amended, modified or supplemented with the prior written consent of each of NBCi, NBC, CNET and Kitze, and each of their respective transferees permitted under this Agreement, so long as such Holder holds Registrable Securities with a market value of at least $50,000,000. The provisions of Section 3 of this Agreement may only be amended, modified or supplemented with the prior written consent of each of NBCi, NBC, CNET and Kitze, and each of their respective transferees permitted under this Agreement, so long as such Holder holds Registrable Securities with a market value of at least $25,000,000. The provisions of Sections 1 and 4 through 11 of this Agreement may only be amended, modified or supplemented with the prior written consent of each of NBCi, NBC, CNET and Kitze, and each of their respective transferees, so long as such Holder holds Registrable Securities with a market value of at least $5,000,000. Upon the effectuation of each such amendment or waiver, NBCi shall as soon as reasonably practicable give written notice thereof to the Holders who have not previously consented thereto in writing. (c) NOTICES. Except as set forth below, all notices and other communications provided for or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or sent by telex or telecopier, registered or certified mail (return receipt requested), postage prepaid or courier or overnight delivery service to NBCi and each Holder, respectively, at the following addresses (or at such other address for any party as shall be specified by like notice, PROVIDED that notices of a change of address shall be effective only upon receipt thereof): If to NBCi: NBC Internet, Inc. 300 Montgomery Street Suite 300 San Francisco, California 94104 Attn.: General Counsel Telecopy: (415) 288-2578 With copies to: Morrison & Foerster LLP 19 425 Market Street San Francisco, California 94105 Attn.: Bruce Alan Mann Telecopy: (415) 268-7522 Morrison & Foerster LLP 1290 Avenue of the Americas New York, NY 10104 Attn.: Allen L. Weingarten Telecopy: (212) 468-7900 If to CNET: CNET, Inc. 150 Chestnut Street San Francisco, California 94111 Attn.: Douglas N. Woodrum, Chief Financial Officer Telecopy: (415) 395-9330 With a copies to: CNET, Inc. 150 Chestnut Street San Francisco, California 94111 Attn.: Sharon Le Duy, General Counsel Telecopy: (415) 395-9330 Hughes & Luce, L.L.P. 1717 Main Street, Suite 2800 Dallas, Texas 75201 Attn.: R. Clayton Mulford Telecopy: (214) 939-5849 If to Disc or Kitze: Chris Kitze 300 Montgomery Street Suite 300 San Francisco, California 94104 Telecopy: (415) 288-2580 If to NBC or GE Sub: National Broadcasting Company, Inc. 30 Rockefeller Plaza New York, NY 10022 Attn.: Marty Yudkovitz Telecopy: (212) 664-5561 With a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue 20 New York, New York 10017 Attn.: Richard Capelouto, Esq. Telecopy: (212) 455-2502 (d) MERGER OR CONSOLIDATION OF NBCI. If NBCi is a party to any merger or consolidation pursuant to which the Registrable Securities are converted into or exchanged for securities or the right to receive securities of any other person ("CONVERSION SECURITIES"), the issuer of such Conversion Securities shall assume (in a writing delivered to all Holders) all obligations of NBCi hereunder. NBCi will not effect any merger or consolidation described in the immediately preceding sentence unless the issuer of the Conversion Securities complies with this Section 11(d). (e) SUCCESSORS AND ASSIGNS. Any Holder may assign, in whole or in part, any of its rights and obligations hereunder to any person who acquires from such Holder at least $5 million worth of such Holder's Registrable Securities (calculated based on the average closing price of such securities on the principal securities exchange or quotation system where such securities are listed on the five business days immediately preceding the date of such assignment); PROVIDED, HOWEVER, that any rights pursuant to Section 2 of this Agreement can only be assigned to (i) a person who acquires at least $50 million of such Holder's Registrable Securities (calculated as aforesaid), (ii) a person, in whole and not in part, and (iii) a person who is not a Newco Competitor, as such term is defined in the Brand Integration and License Agreement, dated as of May 8, 1999, between NBC Multimedia, Inc. and NBC or, with respect to an assignment by CNET, a person (including a Newco Competitor) who has acquired all or substantially all of the stock or assets of CNET through merger, stock purchase, asset sale or otherwise; PROVIDED that in the event of such an assignment by CNET, (i) such assignee shall not have the right to cause an Initial CNET Demand, and (ii) the number of days for which a Shelf Registration that registers only such assignee's shares (and/or shares issuable by NBCi) may be postponed or Blacked-Out shall be increased from 90 days to 180 days. Any transferee of all or a portion of the Registrable Securities shall assume all of the rights and obligations of a Holder hereunder to the extent it agrees in writing, to be bound by all of the provisions applicable hereunder to the transferring Holder (such acknowledgment being evidenced by execution of a Counterpart and Acknowledgment substantially in the form of EXHIBIT A). Subject to the requirements of this Section 11(e), this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. (f) COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same instrument. (g) HEADINGS. The headings in this Agreement are for convenience of reference only and will not limit or otherwise affect the meaning. 21 (h) GOVERNING LAW. This agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts executed and performed within such State. (i) SEVERABILITY. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein will remain in full force and effect and will in no way be affected, impaired or invalidated, and the parties hereto will use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid, void or unenforceable. (j) TERMINATION. This Agreement shall terminate with respect to each Holder and transferee permitted under this Agreement, including, without limitation, any rights of such Holder or transferee pursuant to Section 11(b), on the date upon which such Holder or transferee shall be able to dispose of all of their remaining Registrable Securities in one day without registration pursuant to Rules 144 or 145 of the Securities Act. (k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final expression of their agreement and intended to be the complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein, with respect to such subject matter. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. [SIGNATURE PAGE FOLLOWS] 22 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. NBC Internet, Inc. By: /s/ Chris Kitze ----------------------------------- Name: Chris Kitze Title: Chief Executive Officer National Broadcasting Company, Inc. By: /s/ Mark W. Begor ----------------------------------- Name: Mark W. Begor Title: Executive Vice President GE Investments Subsidiary, Inc. By: /s/ Robert E. Healing ----------------------------------- Name: Robert E. Healing Title: Vice President CNET, Inc. By: /s/ Douglas N. Woodrum ----------------------------------- Name: Douglas N. Woodrum Title: Executive Vice President and Chief Financial Officer 23 Flying Disc Investments Limited Partnership By: /s/ Chris Kitze ---------------------------------------- Name: Chris Kitze Title: Authorized Signatory /s/ Chris Kitze - ------------------------------------------- Chris Kitze 24 EXHIBIT A REGISTRATION RIGHTS AGREEMENT COUNTERPART AND ACKNOWLEDGMENT TO: NBC Internet, Inc. RE: The Registration Rights Agreement (the "Agreement") dated as of November 30, 1999, by and among NBCi and the Holders (as defined in the Agreement) The undersigned hereby agrees to be bound by the terms of the Agreement as a party to the Agreement, and shall be entitled to all benefits of the Holders (as defined in the Agreement) and shall be subject to all obligations and restrictions of the Holders pursuant to the Agreement, as fully and effectively as though the undersigned had executed a counterpart of the Agreement together with the other parties to the Agreement. The undersigned hereby acknowledges having received and reviewed a copy of the Agreement. DATED this _____ day of ____________, _____ ________________________________________________ By:_____________________________________________ Title:__________________________________________ Number of Shares of Registrable Securities:____________________ 25 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- Registration Rights Agreement among National Broadcasting Company, Inc. GE Investments Subsidiary, Inc. CNET, Inc. Flying Disc Investments Limited Partnership Mr. Chris Kitze and NBC Internet, Inc. (formerly known as "Xenon 2, Inc.") Dated: November 30, 1999 - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PAGE ---- TABLE OF CONTENTS ----------------- Section 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Section 2. SHELF REGISTRATION OF RESALES. . . . . . . . . . . . . . . . . . . . . .3 (a) SHELF REGISTRATION STATEMENT.. . . . . . . . . . . . . . . . . . . . . .3 (b) MAINTENANCE OF EFFECTIVENESS.. . . . . . . . . . . . . . . . . . . . . .3 (c) OFFERINGS AND SALES. . . . . . . . . . . . . . . . . . . . . . . . . . .4 (d) POSTPONEMENT OF SHELF REGISTRATION . . . . . . . . . . . . . . . . . . .4 Section 3. DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . .4 (a) REQUESTS FOR REGISTRATION BY HOLDERS . . . . . . . . . . . . . . . . . .4 (b) FILING AND EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . . .5 (c) PRIORITY ON DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . .6 (d) POSTPONEMENT OF DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . .8 Section 4. PIGGYBACK REGISTRATION.. . . . . . . . . . . . . . . . . . . . . . . . .8 (a) RIGHT TO PIGGYBACK . . . . . . . . . . . . . . . . . . . . . . . . . . .8 (b) PRIORITY ON PIGGYBACK REGISTRATIONS. . . . . . . . . . . . . . . . . . .8 Section 5. REGISTRATION PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . .9 Section 6. INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 7. SUSPENSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 8. REGISTRATION EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 9. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 (a) INDEMNIFICATION BY NBCi. . . . . . . . . . . . . . . . . . . . . . . . 15
PAGE ---- (b) INDEMNIFICATION BY HOLDERS . . . . . . . . . . . . . . . . . . . . . . 16 (c) CONDUCT OF INDEMNIFICATION PROCEEDINGS . . . . . . . . . . . . . . . . 16 (d) CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 10. UNDERWRITTEN REGISTRATIONS.. . . . . . . . . . . . . . . . . . . . . . 17 (a) INITIAL CNET DEMAND. . . . . . . . . . . . . . . . . . . . . . . . . . 17 (b) OTHER DEMAND REGISTRATIONS . . . . . . . . . . . . . . . . . . . . . . 18 Section 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 (a) REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 (b) AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . 18 (c) NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 (e) SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . 21 (f) COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 (g) HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 (h) GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 (i) SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 (k) ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
EX-8 9 EXHIBIT 8 EXHIBIT 8 VOTING AND RIGHT OF FIRST OFFER AGREEMENT VOTING AND RIGHT OF FIRST OFFER AGREEMENT, dated as of November 30, 1999 (the "AGREEMENT"), between National Broadcasting Company, a Delaware corporation ("NBC"), and CNET, Inc., a Delaware corporation (together with its successors and permitted assigns, "CNET"). WHEREAS, CNET, Xoom.com, Inc., a Delaware corporation ("XOOM"), Xenon 2, Inc., a Delaware corporation ("XENON 2"), and Xenon 3, Inc., a Delaware corporation, have entered into an Agreement and Plan of Contribution, Investment and Merger, dated as of the date hereof (the "XENON 2 MERGER AGREEMENT", capitalized terms not otherwise defined herein shall have the meaning given to them in the Xenon 2 Merger Agreement; and pursuant to which CNET will become a holder of shares of the Class A common stock, $.0001 par value, of Xenon 2 (the "COMPANY COMMON STOCK"); WHEREAS, NBC, Neon Media Corporation, a Delaware corporation ("NMC"), Xenon 2 and Xoom have entered into an Agreement and Plan of Contribution, Investment and Merger, dated as of the date hereof (the "NMC MERGER AGREEMENT"), pursuant to which NMC will merge with and into Xenon 2; and WHEREAS, it is a condition to the closing of the transactions contemplated by the Xenon 2 Merger Agreement and the NMC Merger Agreement that NBC and CNET enter into this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and intending to be legally bound hereby, the parties agree as follows: AGREEMENT 1. REPRESENTATIONS AND WARRANTIES OF CNET. CNET represents and warrants to NBC as follows: (a) OWNERSHIP OF SECURITIES. Upon consummation of the transactions contemplated by the Xenon 2 Merger Agreement and the NMC Merger Agreement at the Effective Time, CNET will be the record and beneficial owner of, and have good and marketable title to, the number of shares of Company Common Stock (the "CLOSING DATE SECURITIES") (together with any shares of Company Common Stock hereafter acquired by CNET (including through the exercise of options or similar instruments), the "SUBJECT SECURITIES") set forth on the signature page to this Agreement. CNET does not own of record or beneficially any shares of capital stock of the Company on the date hereof other than the Closing Date Securities. CNET has sole voting power and sole power to issue instructions with respect to the voting of the Closing Date Securities and sole power of disposition of the Closing Date Securities. (b) POWER; BINDING AGREEMENT. CNET has full power and authority to enter into and perform all of its obligations under this Agreement. This Agreement has been duly and validly executed and delivered by CNET and constitutes a valid and binding agreement of 2 CNET, enforceable against CNET in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally, by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. (c) NO CONFLICTS. No filing with, and no permit, authorization, consent or approval of, any state or federal governmental body or authority or any other person or entity is necessary for the execution of this Agreement by CNET and the consummation by CNET of the transactions contemplated hereby, other than pursuant to the HSR Act or any filing, permit, authorization, consent or approval, the failure of which to obtain would not reasonably be expected to prevent CNET from performing its obligations under this Agreement, and neither the execution and delivery of this Agreement by CNET nor the consummation by CNET of the transactions contemplated hereby nor compliance by CNET with any of the provisions hereof will conflict with or result in any breach of any applicable organizational documents or instruments applicable to CNET, result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third-party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which CNET is a party or by which the Subject Securities may be bound or violate any order, writ, injunction, decree, judgment, statute, rule or regulation applicable to CNET as of the date hereof, other than such violations, breaches or defaults that would not reasonably be expected to prevent CNET from performing its obligations under this Agreement. 2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of the Company called with respect to any Takeover Proposal, Material Transaction Proposal or transaction or occurrence which if publicly proposed and offered to the Company and its stockholders (or any of them) would be the subject of a Takeover Proposal or Material Transaction Proposal (collectively, a "SUBJECT PROPOSAL"), and at every adjournment of any such meeting, and on every action or approval by written consent of the stockholders of the Company with respect to any Subject Proposal, CNET irrevocably agrees that it shall vote (or cause to be voted) all the Subject Securities that it beneficially owns on the record date of any such vote or action to ratify, approve and adopt any and all actions adopted or approved by NBC, and against any and all actions voted against by NBC. CNET shall not commit or agree to take any action inconsistent with the foregoing. As used herein, "MATERIAL TRANSACTION PROPOSAL" means any inquiry, proposal or offer from any Person relating to (i) the direct or indirect acquisition or purchase of 5% or more of the assets (based on the fair market value thereof) of Xenon 2 and its Subsidiaries, taken as a whole, or of 5% or more of any class of equity securities of Xenon 2 or any of its Subsidiaries or any tender offer or exchange offer (including by Xenon 2 or its Subsidiaries) that if consummated would result in any person beneficially owning 5% or more of any class of equity securities of Xenon 2 or any of its Subsidiaries, or (ii) any merger, consolidation, business combination, sale of all or substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving Xenon 2 or any of its Subsidiaries. As used herein, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any Person relating to (A) any of the matters set forth in clause (i) of the definition of Material Transaction Proposal 3 but replacing "5%" with "50%" each place "5%" is used in such definition, (B) a sale of all or substantially all of the assets of Xenon 2 and its Subsidiaries or (C) a merger or consolidation of Xenon 2 as a result of which the stockholders of Xenon 2 immediately prior to such transaction would not beneficially own immediately after such transaction 50% or more of the resulting or surviving entity (or the parent thereof) 3. IRREVOCABLE PROXY. CNET hereby grants to, and appoints NBC and the President and Treasurer of NBC and the Secretary of NBC, in their respective capacities as officers of NBC, and any individual who shall hereafter succeed to any such office of NBC, and any other designee of NBC, each of them individually, CNET's proxy and attorney-in-fact (with full power of substitution) to vote or act by written consent with respect to the Subject Securities in accordance with Section 2 hereof. This proxy is coupled with an interest and shall be irrevocable, and CNET will take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by it with respect to the Subject Securities; provided that this proxy shall be automatically revoked without any further action on the part of NBC and CNET upon the termination of this Agreement pursuant to Section 14 hereof. 4. REPRESENTATIONS AND WARRANTIES OF NBC. NBC represents and warrants, to CNET as follows: (a) POWER; BINDING AGREEMENT. NBC has full power and authority to enter into and perform all of its obligations under this Agreement. This Agreement has been duly and validly executed and delivered by NBC and constitutes a valid and binding agreement of NBC, enforceable against NBC in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally, by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. (b) NO CONFLICTS. No filing with, and no permit, authorization, consent or approval of, any state or federal governmental body or authority or any other person or entity is necessary for the execution of this Agreement by NBC and the consummation by NBC of the transactions contemplated hereby, other than pursuant to the HSR Act or any filing, permit, authorization, consent or approval, the failure of which to obtain would not reasonably be expected to prevent NBC from performing its obligations under this Agreement, and neither the execution and delivery of this Agreement by NBC nor the consummation by NBC of the transactions contemplated hereby nor compliance by NBC with any of the provisions hereof will conflict with or result in any breach of any organizational documents or instruments applicable to NBC, result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third-party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which NBC is a party or by which NBC's respective properties or assets may be bound or violate any order, writ, injunction, decree, judgment, statute, rule or regulation applicable to NBC as of the date hereof, other than such 4 violations, breaches or defaults that would not reasonably be expected to prevent NBC from performing its respective obligations under this Agreement. 5. COVENANTS OF CNET. CNET hereby agrees and covenants that: (a) NO SOLICITATION. CNET shall not, and shall not authorize its affiliates, partners, investment bankers, attorneys, agents or other advisors or representatives to, directly or indirectly, solicit, knowingly encourage (including by way of providing confidential information or data) or have any discussion or negotiate with any person or entity (other than NBC or any affiliate of NBC) concerning any proposal by such person or entity with respect to the Company that constitutes or could reasonably be expected to lead to a Subject Proposal. CNET will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore by or on its behalf with respect to any of the foregoing. (b) RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE. CNET shall not, and shall not authorize any of its affiliates, partners, investment bankers, attorneys, agents or other advisors or representatives to, directly or indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift), or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any or all of the Subject Securities (or any interest therein), other than in accordance with the provisions of this Agreement and the Standstill Agreement, dated as of the date hereof, between CNET and Xenon 2; (ii) except as contemplated hereby, grant any proxies or powers of attorney, deposit any such Subject Securities into a voting trust or enter into a voting agreement with respect to any of the Subject Securities; (iii) take any action that would have the effect of preventing or disabling CNET from performing its obligations under this Agreement; or (iv) commit or agree to take any of the foregoing actions. CNET will not sell, transfer or otherwise dispose of any of the Subject Securities to any affiliate of CNET unless such agrees to be bound by the terms of this Agreement with respect to such Subject Securities as if it were CNET and delivers a written agreement to NBC to such effect. (c) FURTHER ASSURANCES. CNET will, from time to time, execute and deliver, or cause to be executed and delivered, without further consideration, such additional or further consents, documents and other instruments and take all such further actions as NBC may reasonably request for the purpose of effectuating the matters covered by this Agreement in the most expeditious manner practicable. 6. RIGHTS OF FIRST OFFER AND REOFFER. (a) If CNET at any time intends to transfer, sell, assign, exchange, mortgage, pledge, hypothecate or otherwise dispose of any Company Common Stock or any interest therein (other than pursuant to a merger, consolidation or reorganization to which the Company is a party or a tender offer approved by the Board of Directors of the Company) ("TRANSFER") to any Person other than NBC and its affiliates (a "THIRD PARTY"), CNET shall first give written notice (a "SELLER'S NOTICE") to NBC, stating CNET's intention to make such Transfer, the name of the proposed Third Party transferee (if the Transfer is to occur in a privately negotiated transaction), 5 the number of shares of Company Common Stock to be transferred (the "OFFERED SHARES"), the price or other consideration per share which CNET proposes to be paid for the Offered Shares by the Third Party (the "FIRST OFFER PRICE") and the other material terms upon which such Transfer is proposed. It being expressly understood that, with respect to proposed open market sales and sales pursuant to bona fide underwritten public offerings, CNET may indicate as the price in the Seller's Notice as the "then current market price" and such indication shall be sufficient for such notice. If the Seller's notice specifies the "then current market price" or that the sale will be made for non-cash consideration, then the First Offer Price will be the closing price for shares of Company Common Stock on the NASDAQ Stock Market on the day immediately preceding NBC's acceptance of CNET's offer. CNET will not include in any Seller's Notice more shares of Company Common Stock than the number of shares it anticipates it will sell during the next 60 days. (b) Upon receipt of the Seller's Notice (the "FIRST OFFER"), NBC shall have an irrevocable, non-transferable (other than to Affiliates) option to purchase all or any number of the Offered Shares at the First Offer Price. The option of NBC under this Section 6(b) shall be exercisable by written notice to CNET given within 7 days from receipt of the Seller's Notice. NBC may assign its rights under this Section 6 in whole or in part to the Company. (c) If NBC determines not to exercise its option to purchase the Offered Shares at the First Offer Price or determines to exercise its option to purchase less than all the Offered Shares, then CNET shall be free, for a period of 60 days from the earlier of (i) the expiration of the option period with respect to such First Offer pursuant to Section 6(b) and (ii) the date CNET shall have received written notice from NBC stating that NBC intends not to exercise the option granted to it under the foregoing provisions of this Section 6 with respect to all the Offered Shares, to sell the Offered Shares as to which such options are not exercised to the Third Party transferee at a price equal to or greater than the First Offer Price and on substantially similar material terms as were contained in the First Offer, PROVIDED that the Transfer complies with the provisions of Section 5(b). (d) In the event the proposed purchase price of a Third Party transferee for the Offered Shares is less than the First Offer Price (other than a reduction in the purchase price due to decreases in the market value of the Company Common Stock if the Offered Shares are proposed to be sold in the open market or pursuant to an underwritten offering) or is otherwise on terms that are different in any material respect from those set forth in the Seller's Notice, CNET shall not sell or otherwise transfer any of the Offered Shares unless CNET shall first reoffer the Offered Shares at such lesser price to NBC (the "REOFFER") by giving written notice (the "REOFFER NOTICE") to NBC, stating the items required to be included in the Seller's Notice, including CNET's intention to make such transfer at such lower price or on such different terms (the "REOFFER PRICE"). NBC shall then have an irrevocable, non-transferable (other than to Affiliates) option to purchase all or part of the Offered Shares at the Reoffer Price, exercisable in the same manner as provided in Section 6(b). In the event that NBC does not then elect to purchase all the remaining Offered Shares, or NBC elects to purchase less than all the remaining Offered Shares, the Offered Shares not so purchased may be sold by CNET within 60 days following the earlier of (i) the expiration of the option period with respect to the Reoffer pursuant to Section 6(b) or (ii) the date on which CNET shall have received written notice from NBC 6 stating that NBC intends not to exercise the option granted to it in this Section 6(d) with respect to all of the remaining Offered Shares, at a price equal to or greater than the Reoffer Price, PROVIDED that the Transfer complies with the provisions of Section 5(b). (e) In the event that NBC does not exercise its option to purchase any or all of the Offered Shares at the First Offer Price or at the Reoffer Price, and CNET shall not have sold the remaining Offered Shares to a Third Party transferee for any reason before the expiration of the 30-day period described in Section 6(d) in the event of a Reoffer, or, if no Reoffer Notice is given, the 60-day period described in Section 6(c), then all of the provisions of this Section 6 shall again become applicable to any sales or transfers of Company Common Stock by CNET. (f) If NBC exercises its rights of first offer or reoffer hereunder, the closing of the purchase of the Offered Shares with respect to which such right has been exercised shall take place on the tenth day after the later of (i) the date NBC gives notice of such exercise and (ii) the expiration of such time as NBC may reasonably require in order to comply with applicable United States federal and state laws and regulations, which in no event shall be more than 30 days after the date specified in clause (i). Upon exercise by NBC of its rights of first offer and reoffer under this Section 6, NBC and CNET shall be legally obligated to consummate the purchase contemplated thereby and shall use their best efforts to secure any approvals required, and to comply as soon as practicable with all applicable United States federal and state laws and regulations in connection therewith. (g) Notwithstanding anything herein to the contrary, (i) nothing herein shall prohibit or restrict CNET in any way from (A) pledging or hypothecating any Subject Securities to a financial institution in a bona fide financing transaction so long as CNET controls the voting of such Subject Securities prior to the occurrence of a default or (B) entering into hedging strategies or transactions such as, for example, the purchase and sale of puts, calls, options, straddles and other hedging mechanisms with respect to Subject Securities so long as the aggregate hedging transaction at any time outstanding with any Person and its affiliates do not relate to an aggregate number of shares of Common Stock in excess of 5% of the outstanding shares of Common Stock and Class B Common Stock of the Company at the time such transactions were entered into (or an equivalent position) and (ii) the transactions described in clause (i) shall not be a Transfer and shall not be subject to the Right of First Offer set forth in this Section 6. 7. ENTIRE AGREEMENT; ASSIGNMENT; BENEFITS. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supercedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Except as provided in the last sentence of Section 5(b), this Agreement may not be assigned by any party hereto without the prior written consent of the other party. This Agreement shall be binding upon, and shall inure to the benefit of, each of NBC and CNET and their respective successors and permitted assigns. 7 8. NOTICES. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made if and when delivered personally or by overnight courier or sent by electronic transmission, with confirmation received, to the telecopy numbers specified below: If to NBC: National Broadcasting Company 30 Rockefeller Plaza New York, New York 10012 Attention: Marty Yudkovitz Telecopy: (212) 661-5561 With copies to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 Attention: Richard Capelouto Telecopy: (212) 455-2502 If to CNET: CNET, Inc. 150 Chestnut Street San Francisco, California 94111 Attention: Douglas N. Woodrum Telecopy: (415) 395-9205 with copies to: Hughes & Luce, L.L.P. 1717 Main Street, Suite 2800 Dallas, Texas 75201 Attention: R. Clayton Mulford Telecopy: (214) 939-5849 or to such other address or telecopy number as any party may have furnished to the other parties in writing in accordance herewith. 8 9. NOTICE OF LITIGATION. CNET shall promptly notify NBC of any pending or, to its knowledge, threatened action or proceeding challenging the validity or enforceability of this Agreement or the ability of CNET to perform its obligations hereunder. 10. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable harm would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state thereof having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. 11. AMENDMENT. This Agreement may not be amended or modified, except by an instrument in writing signed by or on behalf of each of the parties hereto. This Agreement may not be waived by any party hereto, except by an instrument in writing signed by or on behalf of the party granting such waiver. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law. 13. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 14. TERMINATION. This Agreement shall terminate upon the date on which CNET and its affiliates do not beneficially own (as determined pursuant to Rule 13d-3 under the Exchange Act) in the aggregate at least 5% of the Company Common Stock outstanding. Upon any termination of this Agreement, this Agreement shall thereupon become void and of no further force and effect, and there shall be no liability in respect of this Agreement or of any transactions contemplated hereby on the part of any party hereto or any of its directors, officers, partners, stockholders, employees, agents, advisors, representatives or affiliates; PROVIDED, HOWEVER, that nothing herein shall relieve any party from any liability for such party's wilful breach of any of its material agreements contained in this Agreement; and PROVIDED FURTHER that nothing herein shall limit, restrict, impair, amend or otherwise modify the rights, remedies, obligations or liabilities of any person under any other contract or agreement. 15. SEVERABILITY. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability and shall not render invalid or unenforceable the remaining terms and provisions of this Agreement or affect the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. 9 IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of each of the parties hereto, all as of the date first above written. NATIONAL BROADCASTING COMPANY By: /s/ Mark W. Begor ----------------------------------- Name: Mark W. Begor Title: Executive Vice President CNET, INC. By: /s/ Douglas N. Woodrum ----------------------------------- Name: Douglas N. Woodrum Title: Executive Vice President and Chief Financial Officer -----END PRIVACY-ENHANCED MESSAGE-----