Common use of Conduct of Business Prior to Effective Time Clause in Contracts

Conduct of Business Prior to Effective Time. 5.1 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 the date hereof 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 the date hereof, 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 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; (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 the date of this Agreement, (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 the date hereof 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.

Conduct of Business Prior to Effective Time. 5.1 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 the date hereof 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 the date hereofMay 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 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; (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 the date of this AgreementMay 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 the date hereof 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.

Conduct of Business Prior to Effective Time. 5.1 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 the date hereof 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 the date hereof, 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 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; (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 the date of this AgreementMay 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 the date hereof 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.

Conduct of Business Prior to Effective Time. 5.1 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 the date hereof 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 the date hereofMay 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 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; (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 the date of this AgreementMay 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 the date hereof 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.