Common use of Conduct of the Business of SNAP Pending the Closing Clause in Contracts

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 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; (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.

Conduct of the Business of SNAP Pending the Closing. NBC SNAP 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 Schedule 5.2, prior to the Closing Dateit shall, NBC and shall use reasonable efforts cause its ------------ subsidiary to cause each of SNAP and its Subsidiary to be operated 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 and maintain all rights, privileges and franchises necessary or desirable in the normal conduct of SNAP's SNAP"s businesses. Without limiting the generality of the foregoing, from May 9, 1999 the date hereof until the Closing, except as expressly permitted or contemplated by this Agreement or as set forth on SCHEDULE Schedule 5.2, NBC SNAP shall use reasonable efforts not to permit SNAP to:not: ------------ (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 the date hereof 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 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(CSection 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 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 person"s petition for bankruptcy or action to appoint a receiver of SNAP; (i) except with respect to transactions permitted by SECTION 5.2 (Cthis Section ------- 5.2(c) and SECTION 5.2(DSection 5.2(d), enter into any contract, agreement, joint venture or ------ -------------- other commitment that is not terminable in SNAP's SNAP"s sole discretion on or prior to one year from May 9, 1999 the date hereof without payment of any termination fee or penalty; (j) except as required by applicable law, as contemplated in this Agreement or the Xenon 2 NMC Merger Agreement or to the extent required under existing employee benefit plans, agreements or arrangements as in effect on May 9, 1999the date of this Agreement, (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(DSection 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(CSection 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.

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 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 Agreement or as set forth on SCHEDULE 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 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(CSection 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 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 Section 5.2 (Cc) and SECTION 5.2(DSection 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; (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(DSection 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(CSection 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.