EXHIBIT 2.1
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AGREEMENT OF MERGER
AND PLAN OF LIQUIDATION AND DISSOLUTION
Dated as of April 8, ▇▇▇▇
▇▇▇▇▇
▇▇▇ Internet, Inc.,
National Broadcasting Company, Inc.
And
Rainwater Acquisition Corp.
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS ....................................... 2
SECTION 1.1. Definitions ......................................... 2
SECTION 1.2. Cross References .................................... 4
ARTICLE II THE MERGER ................................................ 6
SECTION 2.1. The Merger .......................................... 6
SECTION 2.2. Effective Time ...................................... 6
SECTION 2.3. Effect of the Merger ................................ 6
SECTION 2.4. Certificate of Incorporation; By-laws ............... 7
SECTION 2.5. Directors and Officers .............................. 7
SECTION 2.6. Effect on Securities ................................ 7
SECTION 2.7. Dissenting Shares ................................... 8
SECTION 2.8. Treatment of Options and Employee Stock Purchase
Plan ................................................ 8
SECTION 2.9. Treatment of Warrants ............................... 9
SECTION 2.10. Surrender of Shares of Common Stock ................. 9
SECTION 2.11. Lost, Stolen or Destroyed Certificates .............. 11
SECTION 2.12. Further Action ...................................... 11
SECTION 2.13. Conversion of Promissory Note ....................... 11
SECTION 2.14. Plan of Liquidation and Dissolution ................. 12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY............. 12
SECTION 3.1. Organization and Qualification; Subsidiaries......... 13
SECTION 3.2. Certificate of Incorporation and By-laws............. 13
SECTION 3.3. Capitalization....................................... 13
SECTION 3.4. Authority Relative to this Agreement................. 14
SECTION 3.5. No Conflict; Required Filings and Consents........... 15
SECTION 3.6. Compliance; Permits.................................. 16
SECTION 3.7. SEC Filings; Financial Statements.................... 16
SECTION 3.8. Absence of Certain Changes or Events................. 16
SECTION 3.9. No Undisclosed Liabilities........................... 17
SECTION 3.10. Absence of Litigation................................ 17
SECTION 3.11. Employee Benefit Plans; Employment Agreements........ 18
SECTION 3.12. Labor Matters........................................ 19
SECTION 3.13. Proxy Statement, Schedule 13E........................ 20
SECTION 3.14. Restrictions on Business Activities.................. 20
SECTION 3.15. Material Contracts................................... 20
SECTION 3.16. Taxes................................................ 21
SECTION 3.17. Brokers.............................................. 22
SECTION 3.18. Intellectual Property................................ 22
SECTION 3.19. Privacy Rights ...................................... 23
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SECTION 3.20. Insurance............................................ 23
SECTION 3.21. No Rights Plan....................................... 23
SECTION 3.22. Opinion of Financial Advisor......................... 23
SECTION 3.23. Board Approvals...................................... 24
SECTION 3.24. Votes Required....................................... 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF NBC..................... 24
SECTION 4.1. Organization and Good Standing....................... 24
SECTION 4.2. Capitalization....................................... 24
SECTION 4.3. Authority Relative to this Agreement................. 25
SECTION 4.4. No Conflict; Required Filings and Consents........... 25
SECTION 4.5. Absence of Litigation................................ 26
SECTION 4.6. Proxy Statement; Schedule 13E-3...................... 26
SECTION 4.7. Brokers.............................................. 26
SECTION 4.8. No Prior Activities of Merger Sub.................... 26
ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER..................... 26
SECTION 5.1. Conduct of Business by the Company Pending the Merger 27
SECTION 5.2. Additional Agreements with Respect to Conduct of
Business by the Company............................... 29
SECTION 5.3. Additional Agreements with Respect to Employees...... 30
SECTION 5.4. No Solicitation...................................... 30
ARTICLE VI ADDITIONAL AGREEMENTS....................................... 32
SECTION 6.1. Proxy Statement and Schedule 13E-3.................... 32
SECTION 6.2. Company Stockholders Meeting; Voting Agreement Of
NBC ................................................. 32
SECTION 6.3. Access to Information; Confidentiality................ 33
SECTION 6.4. Consents; Approvals................................... 33
SECTION 6.5. Indemnification and Insurance......................... 34
SECTION 6.6. Notification of Certain Matters....................... 35
SECTION 6.7. Further Action....................................... 35
SECTION 6.8. Public Announcements.................................. 36
SECTION 6.9. Conveyance Taxes...................................... 36
SECTION 6.10. Employee Plans and Benefits........................... 36
SECTION 6.11. Disposition of Litigation............................. 36
ARTICLE VII CONDITIONS TO THE MERGER................................... 36
SECTION 7.1. Conditions to Obligation of Each of the Parties to
Effect the Transactions .............................. 36
SECTION 7.2. Additional Conditions to Obligations of NBC........... 37
SECTION 7.3. Additional Conditions to Obligation of the Company.... 37
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ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER.......................... 38
SECTION 8.1. Termination........................................... 38
SECTION 8.2. Effect of Termination................................. 39
SECTION 8.3. Expenses; Termination Fee............................. 39
SECTION 8.4. Amendment............................................. 40
SECTION 8.5. Waiver................................................ 40
ARTICLE IX GENERAL PROVISIONS.......................................... 40
SECTION 9.1. Effectiveness of Representations, Warranties and
Agreements............................................ 40
SECTION 9.2. Notices............................................... 41
SECTION 9.3. Headings; Construction................................ 41
SECTION 9.4. Severability.......................................... 42
SECTION 9.5. Entire Agreement...................................... 42
SECTION 9.6. Assignment............................................ 42
SECTION 9.7. Parties in Interest................................... 42
SECTION 9.8. Failure or Indulgence Not Waiver; Remedies Cumulative. 42
SECTION 9.9. Governing Law; Jurisdiction; Service of Process....... 43
SECTION 9.10. Counterparts.......................................... 43
SECTION 9.11. Waiver of Jury Trial.................................. 43
SECTION 9.12. Obligations of Merger Sub............................. 43
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AGREEMENT OF MERGER
AND PLAN OF LIQUIDATION AND DISSOLUTION
AGREEMENT OF MERGER AND PLAN OF LIQUIDATION AND DISSOLUTION, dated as of
April 8, 2001 (this "Agreement"), among NBC Internet, Inc., a Delaware
corporation (the "Company"), National Broadcasting Company, Inc., a Delaware
corporation ("NBC") and Rainwater Acquisition Corp., a Delaware corporation
and a subsidiary of NBC ("Merger Sub").
W I T N E S S E T H:
WHEREAS, NBC seeks to enter into this Agreement, which provides, among
other things, for Merger Sub to merge with and into the Company (the
"Merger");
WHEREAS, the members of the Board of Directors of the Company elected by
the holders of the Company's Class A Common Stock, par value $.0001 per share
("Class A Common Stock"), voting separately as a class (the "Class A
Directors"), and NBC have negotiated the terms of the Merger;
WHEREAS, each of (i) the Class A Directors and (ii) the members of the
Board of Directors of the Company elected by the holders of the Company's
Class B Common Stock, par value $.0001 per share ("Class B Common Stock" and
collectively with the Class A Common Stock, "Common Stock"), voting
separately as a class (the "Class B Directors"), voting as separate classes,
have determined that the Merger and the Consideration (as defined below) to
be paid in the Merger to holders of the Class A Common Stock are fair to and
in the best interests of the holders of the Class A Common Stock and have
approved this Agreement;
WHEREAS, the Boards of Directors of the Company and Merger Sub have
approved the Merger upon the terms and subject to the conditions set forth
herein and in accordance with the applicable provisions of the General
Corporation Law of the State of Delaware (the "DGCL") and Certificate of
Incorporation of the Company;
WHEREAS, at the Effective Time (as defined below) of the Merger, each
share of Class A Common Stock shall be converted into the right to receive
the Consideration (as defined below) from the Surviving Company (as defined
below) as successor to the Company upon the Merger;
WHEREAS, immediately following the Effective Time, the Surviving Company
shall distribute its remaining assets and liabilities to NBC in cancellation
of all of the outstanding shares of Class B Common Stock; and
WHEREAS, this Agreement shall constitute a plan of liquidation and
dissolution and, pursuant thereto, payment of the Consideration shall
constitute an initial liquidating distribution, and the distribution by the
Surviving Company of its remaining assets and liabilities to NBC shall
constitute a final liquidating distribution.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, each of the
following terms shall have the following meaning:
"Affiliate" means a Person that directly or indirectly, through one or
more intermediaries, Controls, is controlled by, or is under common control
with, the first mentioned Person. For purposes of this Agreement, the
Company shall not be considered an Affiliate of NBC and NBC shall not be
considered an Affiliate of the Company.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a day on which banks in New
York, New York or San Francisco, California are required or authorized to be
closed.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company Material Adverse Effect" means any materially adverse effect on
(i) the assets or Liabilities of the Company and its Subsidiaries taken as a
whole or (ii) the ability of the Company to timely consummate any of the
Transactions; provided, however, that in no event shall any effect that
results from (A) any change in general economic conditions; (B) any change
affecting the internet or media industry generally; (C) any failure by the
Company to meet revenue and earnings estimates; or (D) the announcement of
this Agreement (including the announcement of the liquidation and dissolution
of the Company contemplated by this Agreement); or (E) except for purposes of
Sections 3.3, 3.4, 3.5, 3.11(g), 3.14, 3.17, 3.21, 3.22, 3.23 and 3.24
hereof, any effect that results from compliance by the Company or any
Subsidiary of the Company with the provisions of Sections 5.2 and 5.3 hereof,
constitute or be considered in determining the existence of a Company
Material Adverse Effect. As used in Section 3.18 hereof, "Company Material
Adverse Effect" shall also include any materially adverse effect on the
business of the Company and its subsidiaries, taken as a whole, subject to
the foregoing provisos set forth in clauses (A) through (E).
"Control" (including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise.
"Dollars" or "$" means United States dollars.
"Equity Interest" means with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of, such Person's capital stock
or other equity interests (including, without limitation,
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partnership or membership interests in a partnership or limited liability
company or any other interest or participation that confers on a Person the
right to receive a share of the profits and loss, or distributions of assets,
of the issuing Person) whether outstanding on the date hereof or issued after
the date hereof, and any and all warrants, options or other rights to acquire
(including without limitation, any securities convertible into or
exchangeable for) any such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the SEC rules and regulations promulgated thereunder.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Intellectual Property" means all United States, state and foreign
intellectual property, whether registered or unregistered, including, without
limitation, all (i)(a) patents, inventions, discoveries, processes, designs,
techniques, developments, technology and related improvements and know-how;
(b) copyrights and works of authorship in any media, including computer
programs, hardware, firmware, software, analyses, source and object code,
applications, files, systems, databases, documentation and related items,
Internet site content (including graphics, text, user interface and all other
elements), advertising and promotional materials, and the materials or media
embodying the foregoing; (c) trademarks, service marks, trade names, brand
names, corporate names, domain names, URLs, logos, trade dress, the goodwill
of any business symbolized thereby and all common-law rights relating
thereto; (d) trade secrets, rights in advertiser, customer, user, subscriber
and vendor data, or other confidential or proprietary documents, files,
analyses, lists, ways of doing business and/or information; and (ii) any and
all registrations, applications, licenses and recordings related thereto.
"Investments Sub" means GE Investments Subsidiary, Inc., a Delaware
corporation.
"Knowledge" means the actual knowledge of any of the executive officers
of the Company or NBC, as the case may be.
"Liabilities" 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 by GAAP to be reflected, in such Person's
balance sheet or other books and records.
"Minority Investment" of the Company or any other Person means any
corporation, limited liability company, partnership, joint venture or other
entity of which the Company or such other Person, as the case may be (either
alone or through or together with any other Subsidiary), owns, directly or
indirectly, more than 5% of the Equity Interests but which is not a
Subsidiary of the Company or such other Person.
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"NBC Material Adverse Effect" means any materially adverse effect on the
ability of NBC and Merger Sub to timely consummate the Transactions.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization, other entity or
group (as defined in Section 13(d)(3) of the Exchange Act).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
SEC rules and regulations promulgated thereunder.
"Subsidiary" of the Company or any other Person means any corporation,
limited liability company, partnership, joint venture or other entity of
which the Company or such other Person, as the case may be (either alone or
through or together with any other Subsidiaries), (a) owns, directly or
indirectly, 50% or more of the stock or other interests the holders of which
are generally entitled to vote for the election of the board of directors or
other governing body of such Person or (b) serves as a general partner or
managing member.
"Tax Return" means any return, declaration, report or similar statement
required to be filed with any Governmental Authority with respect to any
Taxes (including any attached schedules), including any information return,
claim for refund, amended return and declaration of estimated Tax.
"Taxes" means all United States federal, state, local or foreign income,
profits, estimated gross receipts, windfall profits, environmental (including
taxes under Section 59A of the Code), severance, property, intangible
property, occupation, production, sales, use, license, excise, emergency
excise, franchise, capital gains, capital stock, employment, withholding,
social security (or similar), disability, transfer, registration, stamp,
payroll, goods and services, value added, alternative or add-on minimum tax,
estimated, or any other tax, custom, duty or governmental fee, or other like
assessment or charge of any kind whatsoever, together with any interest,
penalties, fines, related liabilities or additions to tax they may become
payable in respect therefore imposed by any Governmental Authority, whether
disputed or not.
"Third Party" means a Person (or group of Persons) other than NBC and
its Affiliates.
"Transactions" means the Merger and the Distribution.
SECTION 1.2. Cross References. As used in this Agreement, each of
the following capitalized terms shall have the meaning ascribed to them in
the Section set forth opposite such term:
Term Section
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2000 Balance Sheet 3.9
401(k) Plan 6.10
Acquisition Agreement 5.4(d)
Acquisition Proposal 5.4(a)
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Term Section
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Action 6.5(a)
Alternative Transaction 5.4(c)
Assumption 2.14(a)
Cap Ex Budget 3.15(a)(i)
Certificate of Merger 2.2
Class A Common Stock Recitals
Class A Directors Recitals
Class B Common Stock Recitals
Class B Directors Recitals
Closing 2.2
Closing Date 2.2
Common Stock Recitals
Company Charter Documents 3.2
Company Disclosure Schedule 3
Company Employee Plan 3.11(a)
Company ESPP 2.8(b)
Company IP 3.18(a)
Company Option 2.8(a)
Company-Owned IP 3.18(b)
Company Permits 3.6(b)
Company SEC Reports 3.7(a)
Company Stockholders Meeting 3.13
Company Warrant 2.9(a)
Confidentiality Letter 6.3
Consideration 2.6(b)
Contracts 3.15(a)
D&O Insurance 6.5(b)
DGCL Recitals
Dissenting Shares 2.7
Distribution 2.14(a)
Effective Time 2.2
ERISA Affiliate 3.11(a)
GAAP 3.7(b)
Governmental Authority 3.5(b)
Indemnification Agreements 6.5(a)
Indemnified Party 6.5(a)
Insurance Policies 3.20
Interim Period 5.1
IP Contract 3.20
Laws 3.5(a)
Liens 3.3(b)
Material Contracts 3.15(a)
Merger Recitals
Merger Sub Common Stock 2.6(a)
Minority Investment Documents 3.2
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Term Section
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Option Consideration 2.8(a)
Option Notice 2.8(a)
Paying Agent 2.10(a)
Preferred Stock 3.3(a)
Privacy Rights 3.19
Proxy Statement 3.13
Reduction Plan 5.2
Requisite Stockholder Approvals 7.1(a)
Schedule 13 E-3 3.13
Section 203 3.4
Subsidiary Documents 3.2
Superior Proposal 5.4(b)
Surviving Company 2.1
Termination Fee 8.3(a)
Underwater Warrants 2.9(a)
ARTICLE II
THE MERGER
SECTION 2.1. The Merger. At the Effective Time, and subject to and
upon the terms and conditions of this Agreement and the DGCL, Merger Sub
shall be merged with and into the Company, the separate corporate existence
of Merger Sub shall cease, and the Company shall continue as the Surviving
Company (hereinafter sometimes referred to as the "Surviving Company") under
the name "NBC Internet, Inc."
SECTION 2.2. Effective Time. Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 8.1, as promptly as practicable (and in any event within
two Business Days) after the satisfaction or waiver of the conditions set
forth in Article VII, the parties hereto shall cause the Merger to be
consummated by filing a certificate of merger as contemplated by the DGCL
(the "Certificate of Merger"), together with any required related
certificates, with the Secretary of State of the State of Delaware, in such
form as required by, and executed in accordance with the relevant provisions
of, the DGCL. The Merger shall become effective at the time of such filing
or at such later time agreed to by NBC and the Company and specified in the
Certificate of Merger (the "Effective Time"). Prior to such filing, a
closing (the "Closing") shall be held at such time as may be agreed upon by
NBC and the Company, at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, unless another place is agreed to in
writing by the parties hereto, for the purpose of confirming the satisfaction
or waiver, as the case may be, of the conditions set forth in Article VII.
The date of such closing is referred to herein as the "Closing Date".
SECTION 2.3. Effect of the Merger. At the Effective Time, the effect
of the Merger shall be as provided in this Agreement, the Certificate of
Merger and the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time (i)
the Surviving Company shall possess all rights, privileges, powers and
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franchises, both public and private, and all of the property, real, personal,
and mixed of each of the Company and Merger Sub and all obligations belonging
to or due to Merger Sub or the Company, all of which shall be vested in the
Surviving Company without any further act or deed; and (ii) the Surviving
Company shall be liable for all the obligations of Merger Sub and the Company.
SECTION 2.4. Certificate of Incorporation; By-laws (a) Certificate of
Incorporation. Unless otherwise determined by NBC prior to the Effective
Time, at the Effective Time the Certificate of Incorporation of the Company,
as in effect immediately prior to the Effective Time, shall be amended and
restated so as to read in its entirety in the form set forth in Exhibit A and
shall be the Certificate of Incorporation of the Surviving Company until
thereafter amended as provided by the DGCL and such Certificate of
Incorporation.
(b) By-laws. The By-laws of Merger Sub, as in effect immediately prior
to the Effective Time, shall be the By-laws of the Surviving Company until
thereafter amended as provided in its Certificate of Incorporation and by the
DGCL.
SECTION 2.5. Directors and Officers. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Company, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Company, and the officers of
Merger Sub immediately prior to the Effective Time shall be the initial
officers of the Surviving Company, in each case until their respective
successors are duly elected or until their earlier resignation, removal from
office or death.
SECTION 2.6. Effect on Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of NBC, Merger Sub, the Company
or the holders of any securities of the Company:
(a) Conversion of Common Stock of Merger Sub. Each share of common
stock of Merger Sub, par value $0.01 per share ("Merger Sub Common Stock"),
issued and outstanding immediately prior to the Effective Time, shall be
converted into the right to receive the amount of the cash capital
contributed by the holder of such Merger Sub Common Stock upon issuance
thereof by Merger Sub.
(b) Conversion of Class A Common Stock of the Company. Each share of
Class A Common Stock issued and outstanding immediately prior to the
Effective Time (other than Dissenting Shares and such shares held by the
Company or any Subsidiary of the Company), shall be converted into the right
to receive $2.19 in cash (the "Consideration") from the Surviving Company.
(c) Conversion of Class B Common Stock of the Company. Each share of
Class B Common Stock, issued and outstanding immediately prior to the
Effective Time (other than such shares held by the Company or any of its
Subsidiaries), shall remain outstanding as of the Effective Time as validly
issued, fully paid and nonassessable shares of Class B common stock, par
value $.0001 per share, of the Surviving Company, having all the same rights,
privileges and preferences as the Class B Common Stock.
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(d) Cancellation. Each share of Class A Common Stock or Class B common
stock held in the treasury of the Company or by any of its Subsidiaries
immediately prior to the Effective Time shall cease to be outstanding and
shall be cancelled and retired without payment of any consideration therefor,
and cease to exist.
SECTION 2.7. Dissenting Shares. (a) Notwithstanding any provision
of this Agreement to the contrary, any shares of Class A Common Stock issued
and outstanding immediately prior to the Effective Time, and held by a holder
who has the right to demand payment for and any appraisal of such shares in
accordance with Section 262 of the DGCL (or any successor provision), who
perfects his demand for the appraisal of the fair value of his shares of
Class A Common Stock in accordance with the DGCL and, as of the Effective
Time, has neither effectively withdrawn nor lost his right to make such
demand (such shares of Class A Common Stock, the "Dissenting Shares"), shall
not be converted into or represent a right to receive the Consideration
pursuant to Section 2.6(b), but the holder thereof shall be entitled to only
such rights as are granted by the DGCL.
(b) Notwithstanding the provisions of Section 2.7(a), if any holder of
Dissenting Shares effectively withdraws or loses (through failure to perfect
or otherwise) his right to make such demand, then as of the Effective Time or
the occurrence of such event, whichever occurs later, such dissenting
holder's shares of Class A Common Stock shall automatically be converted into
and represent only the right to receive the Consideration as provided in
Section 2.6(b) without interest thereon, upon surrender of the certificate or
certificates representing such shares.
(c) The Company shall give NBC (i) prompt notice of any written demands
for appraisal of the fair value of any shares of Common Stock, withdrawals of
such demands and any other instruments served pursuant to the DGCL received
by the Company after the date hereof and (ii) the opportunity to participate
in and, after the Effective Time, direct all negotiations and proceedings
with respect to demands for appraisal or the payment of the fair cash value
of any such shares under the DGCL. The Company shall not voluntarily make
any payment with respect to any demands for appraisal or the payment of the
fair cash value of any shares and shall not, except with the prior written
consent of NBC, settle or offer to settle any such demands.
SECTION 2.8. Treatment of Options and Employee Stock Purchase Plan.
(a) Not later than fifteen days (15) prior to the Effective Time, the
Company shall send a notice (the "Option Notice") to all holders of options
to purchase shares of Common Stock (each, a "Company Option"): (i) specifying
that such options shall not be assumed in connection with the Merger, (ii)
specifying that the vesting restrictions applicable to all Company Options
outstanding at the time of such notice shall be eliminated such that no
vesting restrictions remain thereon, and (iii) specifying that any Company
Options outstanding as of the Effective Time shall terminate and be cancelled
at such time and represent only the right to receive the Option Consideration
as described in this Section 2.8(a). The Company shall permit each holder of
a Company Option who desires to exercise all or any portion of such Company
Option following receipt of the Option Notice to exercise any portion of such
Company Option. All Company Options outstanding as of the Effective Time
shall by virtue of the Merger, and without any action on the part of the
holder thereof, be terminated and cancelled as of the Effective Time.
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The holder of each Company Option so cancelled shall be entitled to receive
from the Company at the Effective Time or as soon as practicable thereafter
from the Company in consideration for such cancellation an amount in cash
equal to the product of (x) the number of shares subject to such Company
Option and (y) the excess of the Consideration over the exercise price per
share issuable upon exercise of such Company Option, adjusted for applicable
withholding taxes (the "Option Consideration"). NBC and the Company agree to
take all corporate or other action as shall be necessary to effectuate the
foregoing.
(b) Prior to the Effective Time, all rights to purchase shares of
Common Stock outstanding under the Company's 1999 Employee Stock Purchase
Plan (the "Company ESPP") immediately prior to such date shall be exercised
and each share of Common Stock purchased pursuant to such exercise shall by
virtue of the Merger, and without any action on the part of the holder
thereof, be converted into the right to receive the Consideration payable in
respect thereof, without the issuance of certificates representing issued and
outstanding shares of Common Stock. Any Common Stock issued pursuant to the
Company ESPP shall be deemed issued and outstanding at the Effective Time.
The Company ESPP shall be terminated immediately following such exercises.
NBC and the Company agree to take all corporate or other action as shall be
necessary to effectuate the foregoing.
SECTION 2.9. Treatment of Warrants. (a) Each warrant to purchase
shares of Common Stock (each, a "Company Warrant") which has an exercise
price per share that is equal to or greater than the Consideration (the
"Underwater Warrants") shall be cancelled as of the Effective Time without
consideration. Each Company Warrant (other than an Underwater Warrant) shall
(A) become fully vested and exercisable as of the Effective Time, to the
extent that it was not fully vested prior thereto, and (B) be cancelled by
the Company and the holder thereof shall receive at the Effective Time or as
soon as practicable thereafter from the Company in consideration for such
cancellation an amount in cash equal to the product of (a) the number of
shares subject to such Company Warrant and (b) the excess of the
Consideration over the exercise price per share issuable upon exercise of
such Company Warrant, adjusted for applicable withholding taxes. NBC and the
Company agree to take all corporate or other action as shall be necessary to
effectuate the foregoing, and the Company shall use its commercially
reasonable efforts to obtain, if required, prior to the Closing Date, such
consent of each holder of a Company Warrant as shall be necessary to
effectuate the foregoing.
(b) As soon as practicable following the date hereof, the Company shall
provide to the record holders of Company Warrants appropriate notice of such
holders' rights thereunder.
SECTION 2.10. Surrender of Shares of Common Stock. (a) Prior to the
Effective Time, the Company shall appoint a bank or trust company that is
reasonably satisfactory to the Company and NBC to act as agent (the "Paying
Agent") for the payment of the Consideration.
(b) The Surviving Company shall, at the Effective Time, provide the
Paying Agent with the full amount of the Consideration, in immediately
available funds. The Paying Agent shall invest the Consideration as directed
by the NBC or the Surviving Company, as the
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case may be, on a daily basis. Any interest and other income resulting from
such investments shall be paid to the Surviving Company.
(c) Promptly following the Effective Time, the Surviving Company shall
instruct the Paying Agent to mail, no later than two Business Days after the
Effective Time, to each holder of record of a certificate representing shares
of Class A Common Stock converted upon the Merger pursuant to Section 2.6(b),
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the certificates shall pass, only
upon delivery of the certificates to the Paying Agent and shall be in such
form and have such other provisions as NBC or the Surviving Company may
reasonably specify) and (ii) instructions for use in effecting the surrender
of the certificates. The Paying Agent shall accept such certificates upon
compliance with such reasonable terms and conditions as the Paying Agent may
impose to effect an orderly exchange thereof in accordance with normal
exchange practices. Each holder of a certificate or certificates representing
shares of Class A Common Stock converted upon the Merger pursuant to Section
2.6(b) may thereafter surrender such certificate or certificates to the
Paying Agent, as agent for such holder, to effect the surrender of such
certificate or certificates on such holder's behalf for a period ending six
months after the Effective Time. Upon the due surrender of certificates
representing shares of Class A Common Stock that have been converted into the
right to receive the Consideration, the Surviving Company shall cause the
Paying Agent to pay the holder of such certificates in exchange therefor the
applicable Consideration multiplied by the number of shares of Class A Common
Stock represented by such certificate that have been so converted. Until so
surrendered, each such certificate shall represent solely the right to
receive the applicable Consideration relating thereto.
(d) If payment of the Consideration in respect of converted shares of
Class A Common Stock is to be made to a Person other than the Person in whose
name a surrendered certificate is registered, it shall be a condition to such
payment that the certificate so surrendered shall be properly endorsed or
shall be otherwise in proper form for transfer and that the Person requesting
such payment shall have paid any transfer and other taxes required by reason
of such payment in a name other than that of the registered holder of the
certificate or instrument surrendered or shall have established to the
satisfaction of the Surviving Company or the Paying Agent that such tax
either has been paid or is not payable.
(e) At and after the Effective Time, no further transfer of shares of
Class A Common Stock which have been converted pursuant to this Agreement
into Consideration shall be made, other than transfers of shares of Class A
Common Stock that have occurred prior to the Effective Time. In the event
that, after the Effective Time, certificates representing shares of Class A
Common Stock that have been converted pursuant to this Agreement into
Consideration are presented to the Surviving Company, they shall be cancelled
and exchanged for the Consideration provided in Section 2.6.
(f) The Consideration paid in the Merger shall be net to the holder of
shares of Class A Common Stock without interest thereon, and shall be subject
to reduction only for any applicable United States federal or other back-up
withholding or stock transfer taxes payable by such holder.
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(g) Promptly following the date which is six months after the Effective
Time, the Paying Agent shall deliver to the Surviving Company all cash,
certificates and other documents in its possession relating to the
Transactions, and the Paying Agent's duties shall terminate. Thereafter,
each holder of a certificate representing shares of Class A Common Stock may
surrender such certificate to the Surviving Company and (subject to any
applicable abandoned property, escheat or similar law) receive in
consideration therefor the aggregate Consideration relating thereto, without
any interest thereon.
(h) None of Merger Sub, the Surviving Company or the Paying Agent shall
be liable to any holder of shares of Class A Common Stock for any cash or
securities delivered to a public official pursuant to any abandoned property,
escheat or similar Law.
(i) In the event the Surviving Company does not have adequate funds to
provide the full Consideration to the Paying Agent at the Effective Time
pursuant to Section 2.10(b) hereof, NBC agrees that immediately prior to the
Effective Time it shall prepay all or such portion of the promissory note,
dated November 30, 1999, in the original principal amount of $340,000,000
issued by NBC and held by Issuer, as is necessary to provide adequate
additional funds to enable the Company to provide such Consideration in
accordance with Section 2.10(b) hereof (after paying all fees and expenses of
the Company incurred in connection with this Agreement). For the avoidance
of doubt, NBC will also continue to make all regularly scheduled payments of
principal and interest on such promissory note until the Effective Time. Any
and all Equity Interests in the Surviving Company outstanding after the
Effective Time, other than the Class B Common Stock held by NBC, shall be
cancelled.
SECTION 2.11. Lost, Stolen or Destroyed Certificates. In the event any
certificates representing shares of Class A Common Stock shall have been
lost, stolen or destroyed, the Paying Agent shall deliver the Consideration
pursuant to Section 2.6, in exchange for such lost, stolen or destroyed
certificates upon the making of an affidavit of that fact by the holder
thereof; provided, however, that the Surviving Company may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificates to deliver an indemnity against
any claim that may be made against the Surviving Company or the Paying Agent
with respect to the certificates alleged to have been lost, stolen or
destroyed.
SECTION 2.12. Further Action. If, at any time after the Effective
Time, any further action is necessary or desirable to carry out the purposes
of this Agreement and to put the Surviving Company in possession of all
assets and property of every description and every interest, wherever
located, and the rights, privileges, immunities, powers, franchises and
authority, of a public as well as of a private nature, of the Company and
Merger Sub, the Persons who were officers and directors of the Company and
Merger Sub immediately prior to the Effective Time are fully authorized in
the name of their respective corporations or otherwise to take, and will
take, all such lawful and necessary action.
SECTION 2.13. Conversion of Promissory Note. (a) After satisfaction
of the conditions to closing set forth in Article VII hereof and immediately
prior to the Effective Time, (i) NBC will convert the Subordinated Zero
Coupon Convertible Debenture of the Company dated November 30, 1999 in the
principal amount of $39,477,953 held by NBC into shares of
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Class B Common Stock and (ii) Investments Sub will convert the Subordinated
Zero Coupon Convertible Debenture of the Company dated November 30, 1999 in
the principal amount of $477,416,845 held by Investments Sub into shares of
Class B Common Stock, in each case pursuant to the optional conversion
provisions contained in Section 2(a) of each such debenture. Investments Sub
will then transfer all Class B Common Stock held by it to NBC.
(b) Each of Investments Sub and NBC hereby agrees that Company's
execution and delivery of this Agreement and the consummation of the
Transactions and the other transactions contemplated by this Agreement shall
not constitute an Event of Default or otherwise be considered a breach of any
provisions of the Subordinated Zero Coupon Convertible Debenture held by it.
SECTION 2.14. Plan of Liquidation and Dissolution. (a) Immediately
after the Effective Time, the Surviving Company shall make a final
liquidating distribution to NBC, as sole stockholder of the Surviving
Company, in exchange for all Class B Common Stock by transferring, assigning
and delivering to NBC all of the Surviving Company's right, title and
interest in and to all properties, assets and other rights owned or leased
by, or licensed to Surviving Company, but excluding the full amount of the
Consideration required to be provided by it to the Paying Agent pursuant to
Section 2.10(b) hereof (the "Distribution"). In consideration for the
Distribution, all Class B Common Stock shall be cancelled and NBC shall
simultaneously assume and agree to pay, perform and discharge when due, any
and all Liabilities (including Taxes) of the Surviving Company, but excluding
the obligation to provide the Consideration to the Paying Agent pursuant to
Section 2.10(b) hereof (the "Assumption").
(b) On the Closing Date, after the Effective Time, the Distribution and
the Assumption, the Surviving Company shall dissolve by filing a certificate
of dissolution as contemplated by the DGCL with respect to the Surviving
Company, together with any required related certificates, with the Secretary
of State of the State of Delaware, in such form as required by, and executed
in accordance with the relevant provisions of, the DGCL.
(c) For all tax purposes, the Agreement shall constitute a plan of
liquidation pursuant to Section 331 of the Code and payment of the
Consideration shall constitute the initial liquidating distribution and the
Distribution shall constitute the final liquidating distribution of the
Surviving Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth (a) in the written disclosure schedule dated as of
the date of this Agreement and previously delivered by the Company to NBC
(the "Company Disclosure Schedule") (it being understood that the Company
Disclosure Schedule shall be arranged in sections corresponding to the
sections contained in this Agreement, and the disclosures in any section of
the Company Disclosure Schedule shall qualify all of the representations in
the corresponding section of this Article III and, in addition, all other
sections in this Article III to the extent it is reasonably clear from a
reading of the disclosure that such disclosure is applicable to such other
sections), (b) in the Company SEC Reports (as defined in Section 3.7(a))
filed prior
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to the date hereof to the extent it is reasonably clear from a reading of the
disclosure in such Company SEC Reports that such disclosure is applicable to
the relevant representation and warranty contained herein or (c) in Contracts
between the Company and any of its Subsidiaries, on the one hand, and NBC and
any of its Subsidiaries, on the other hand, the Company hereby represents and
warrants to NBC and Merger Sub as follows:
SECTION 3.1. Organization and Qualification; Subsidiaries. Each of
the Company and its Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
formation and has the requisite corporate or other power and authority
necessary to own, lease and operate its properties and to carry on its
business as it is now being conducted. Each of the Company and its
Subsidiaries is duly qualified or licensed as a foreign corporation or entity
to do business, and is in good standing, in each jurisdiction where the
character of its properties owned, leased or operated by it or the nature of
its activities makes such qualification or licensing necessary, except where
the failure to be so duly qualified or licensed and in good standing would
not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect. Section 3.1 of the Company Disclosure
Schedule sets forth a list of all Subsidiaries of the Company together with
the jurisdiction of incorporation or formation of each such Subsidiary and
the percentage of each class or type of each such Subsidiary's outstanding
Equity Interests owned by the Company or another Subsidiary of the Company.
SECTION 3.2. Certificate of Incorporation and By-laws. The Company
has heretofore made available to NBC a complete and correct copy of (a) its
Certificate of Incorporation and By-laws as amended through the date hereof
(the "Company Charter Documents"), (b) the Certificates of Incorporation and
By-laws (or equivalent organizational documents) of, and any investor rights,
voting, co-sale or other similar agreements applicable to, each of its
Subsidiaries (the "Subsidiary Documents") and (c) the Certificates of
Incorporation and By-laws (or equivalent organizational documents) and any
investor rights, voting, co-sale or other agreements applicable to the
Company or its Subsidiaries with respect to each of its Minority Investments
(the "Minority Investment Documents"). Such Company Charter Documents and
Subsidiary Documents, and, to the Company's knowledge, the Minority
Investment Documents, are in full force and effect and no other charter or
organizational documents or investor rights, voting, co-sale or other similar
agreements are applicable to or binding on the Company or its Subsidiaries or
Minority Investments. Neither the Company, any of its Subsidiaries nor, to
the Company's knowledge, any Minority Investment is in violation of any
provision of its Articles of Incorporation or By-laws or equivalent
organizational documents.
SECTION 3.3. Capitalization. (a) The authorized capital stock of the
Company consists of 100,000,000 shares of Class A Common Stock, 100,000,000
shares of Class B Common Stock and 10,000,000 shares of Preferred Stock,
$.0001 par value ("Preferred Stock"). As of March 31, 2001, (i) 39,019,243
shares of Class A Common Stock were issued and outstanding, all of which are
validly issued, fully paid and nonassessable and were issued free of
preemptive or similar rights, (ii) no shares of Common Stock were held by
Subsidiaries of the Company, (iii) 10,286,317 shares of Class A Common Stock
were issuable upon the exercise of Company Options then outstanding, (iv)
8,682,582 shares of unissued Common Stock were reserved for issuance under
Company Employee Plans, (v) 244,004 shares of Class A Common Stock were
issuable upon the exercise of Company Warrants then outstanding, (vi)
24,550,708
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shares of Class B Common Stock were issued and outstanding, all of which are
validly issued, fully paid and nonassessable and were issued free of
preemptive or similar rights and (vii) no shares of Preferred Stock were
issued and outstanding. Between March 31, 2001 and the date of this
Agreement, the Company has not issued or reserved for issuance any Class A
Common Stock, Company Options or other Equity Interests of the Company,
except the issuance of Class A Common Stock as a result of the exercise of
Company Options outstanding at March 31, 2001. Between December 31, 2000 and
the date of this Agreement, neither the Company nor any of its Subsidiaries
has declared or paid any dividend or distribution in respect of any of its
Equity Interests and neither the Company nor any of its Subsidiaries has
repurchased, redeemed or otherwise acquired any Equity Interests of the
Company or any of its Subsidiaries, and the Board of Directors has not
resolved to do any of the foregoing.
(b) Neither the Company nor any of its Subsidiaries owns any Minority
Investments in any Person that is not a Subsidiary. All of the outstanding
Equity Interests of the Company's Subsidiaries and all of the Equity
Interests of the Minority Investments owned by the Company or its
Subsidiaries are duly authorized, validly issued, fully-paid and
nonassessable, and all such shares are owned by the Company or another
Subsidiary of the Company, free and clear of all security interests, liens,
claims, pledges, charges or other encumbrances of any nature whatsoever
("Liens") or any other limitation or restriction (including any restriction
on the right to vote, sell or otherwise dispose of such Equity Interests) and
were issued in compliance with all applicable federal and state securities
Laws.
(c) Section 3.3(c) of the Company Disclosure Schedule sets forth the
total outstanding Company Options and Company Warrants as of March 31, 2001
(other than all Underwater Warrants and all Company Options that have an
exercise price per share that is equal to or greater than the Consideration),
together with the aggregate exercise price therefor and the total number of
shares of Company Common Stock subject thereto. Except as set forth in
Section 3.1 or 3.11 or this Section 3.3, as of the date of this Agreement,
there are no options, warrants or other rights, agreements, arrangements or
commitments of any character binding on the Company or any of its
Subsidiaries relating to the issued or unissued Equity Interests of the
Company or any of its Subsidiaries or obligating the Company or any of its
Subsidiaries to issue, sell, repurchase, redeem or otherwise acquire any
Equity Interests of the Company or any of its Subsidiaries.
(d) As of the date hereof, the only outstanding indebtedness for
borrowed money of the Company and its Subsidiaries is set forth in Section
3.3(d) of the Company Disclosure Schedule.
SECTION 3.4. Authority Relative to this Agreement. The Company has
all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
Merger. The execution and delivery of this Agreement by the Company and the
consummation by the Company of the Transactions have been duly and validly
authorized by all necessary corporate action of the Company other than the
adoption of this Agreement by the Company's stockholders in accordance with
the DGCL and the Company Charter Documents, and no other corporate
proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the Merger (other than the adoption of this
Agreement by the Company's stockholders in accordance with the DGCL,
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including, to the extent applicable, Section 203 of the DGCL ("Section 203")
and the Company Charter Documents and the filing and recordation of the
appropriate documents with respect to the Merger in accordance with the
DGCL). This Agreement has been duly and validly executed and delivered by the
Company and, assuming the due authorization, execution and delivery hereof by
NBC and Merger Sub, constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except to the extent limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance, or other Laws affecting the rights of creditors
generally, and to the extent that the availability of equitable remedies may
be limited by equitable principles.
SECTION 3.5. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by the Company does not, and the
performance of this Agreement by the Company and the consummation of the
Transactions will not, (i) conflict with or violate the Company Charter
Documents, the Subsidiary Documents or the Minority Investment Documents,
(ii) assuming that all consents, approvals and authorizations contemplated by
clauses (i) and (iii) of subsection (b) of this Section 3.5 have been
obtained and all filings described in such clauses have been made, conflict
with or violate any law, statute, ordinance, rule, regulation, order,
judgment or decree (collectively, "Laws") applicable to the Company or any of
its Subsidiaries or, to the knowledge of the Company, any of its Minority
Investments or by which any of their respective properties is bound or
affected, or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or alteration of rights under or require the consent or
approval of any Person under, or result in the creation of a Lien on any of
the properties or assets of the Company or any of its Subsidiaries or, to the
knowledge of the Company, Minority Investments pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise,
joint venture, limited liability or partnership agreement or other instrument
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of their respective material
properties is bound or affected, except, in the case of clauses (ii) and
(iii) of this Section 3.5(a), for any conflict, violation, breach, default,
impairment, right or lack of consent or approval that would not, individually
or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect.
(b) The execution and delivery of this Agreement by the Company does
not, and the performance of this Agreement by the Company and the
consummation of the Transactions will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any federal,
state or local court or governmental or regulatory authority or agency,
domestic or foreign (each, a "Governmental Authority"), except (i) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect,
or (ii) consents, approvals, authorizations, permits, filings or
notifications which have heretofore been obtained or made, as the case may
be, by the Company and are in full force and effect. The consummation of the
Transactions will not result in the lapse or termination of any Company
Permits (as defined below) or the breach of or default under any Company
Permit, except for such lapses, terminations, breach or defaults that would
not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
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SECTION 3.6. Compliance; Permits. (a) Neither the Company nor any of
its Subsidiaries has failed to comply with, or has been in breach of or is in
conflict with, or in default or violation of (i) any material Law applicable
to the Company or any of its Subsidiaries or by which any of their respective
material properties is bound or (ii) any Material Contract except as would
not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
(b) The Company and its Subsidiaries have, and are in compliance with,
all domestic and foreign permits, licenses, easements, variances, exemptions,
consents, certificates, orders and approvals from Governmental Authorities
which are material to the operation of the business of the Company and its
Subsidiaries taken as a whole as it is now being conducted (collectively, the
"Company Permits"), except where the failure to hold such Company Permits
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
SECTION 3.7. SEC Filings; Financial Statements. (a) The Company and
its predecessors have filed on a timely basis all forms, reports and
documents required to be filed with the SEC since July 12, 1999 (all forms,
reports and documents filed by the Company and its predecessors with the SEC
since July 12, 1999 are referred to herein as the "Company SEC Reports"). No
Subsidiary of the Company is required to file any form, report, statement,
schedule, registration statement or other document with the SEC. The Company
SEC Reports (i) complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be,
and the rules and regulations thereunder, each as in effect on the date so
filed or amended, and (ii) did not at the time they were filed (or if amended
or superseded by a filing prior to the date of this Agreement, then on the
date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(b) Each of the audited and unaudited consolidated financial statements
(including, in each case, any related notes thereto) contained in the Company
SEC Reports were prepared in accordance with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto or in the
Company SEC Reports), and each fairly presents the consolidated financial
position of the Company and its Subsidiaries at the respective dates thereof
and the consolidated results of their operations and cash flows for the
periods indicated, except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments and do not
contain all of the footnote disclosures required by GAAP.
SECTION 3.8. Absence of Certain Changes or Events. Since December 31,
2000, the Company and its Subsidiaries have conducted business in the
ordinary course and there has not occurred: (i) any material adverse change
in the assets or Liabilities of the Company and its Subsidiaries taken as a
whole or any events, developments or circumstances that would, individually
or in the aggregate, reasonably be expected to result in such a material
adverse change, in each case other than any changes arising after the date
hereof as a result of any actions taken pursuant to Section 5.2 or 5.3
hereof, any change in general economic conditions, any change affecting the
internet or media industry generally, any failure by the Company to meet
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revenue and earnings estimates or the announcement of this Agreement
(including the announcement of the liquidation and dissolution of the Company
contemplated by this Agreement); (ii) any amendment or change in the Company
Charter Documents; (iii) any damage to, destruction or loss of any asset of
the Company or any of its Subsidiaries (whether or not covered by insurance)
that would, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect; (iv) any material change by the Company in
its accounting methods, principles or practices (other than changes required
by GAAP); (v) other than in the ordinary course of business, any purchase,
acquisition, sale or other disposition of a material amount of assets of the
Company or any of its Subsidiaries; (vi) any granting of any increase in
severance or termination pay, except as was required under any employment,
severance or termination agreements in effect as of December 31, 2000 that
have been delivered to NBC; (vii) any granting of any increase in
compensation payable or to become payable to any officer or key employee of
the Company or any of its Subsidiaries; or (viii) any material tax election,
any material change in method of accounting with respect to Taxes or any
compromise or settlement of any proceeding with respect to any material Tax
liability.
SECTION 3.9. No Undisclosed Liabilities. As of December 31, 2000,
neither the Company nor any of its Subsidiaries had any liabilities,
contingent or otherwise, except liabilities (a) adequately provided for in
the Company's audited balance sheet (including any related notes thereto) as
of December 31, 2000 included in the Company's Annual Report of Form 10-K for
the year ended December 31, 2000 (the "2000 Balance Sheet"), or (b) that, had
they been known to the Company at the time of the preparation of the 2000
Balance Sheet, would not have been required under GAAP to be reflected on the
2000 Balance Sheet or disclosed in the notes thereto. Since December 31,
2000, the Company and its Subsidiaries have only incurred liabilities (x) as
set forth in the Company SEC Reports filed prior to the date hereof, (y) in
the ordinary course of business consistent with past practice, or (z) after
the date hereof pursuant to Section 5.2 and 5.3 hereof and which, in the case
of clause (y) of this Section 3.9, would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect.
SECTION 3.10. Absence of Litigation. There are no suits, claims,
actions, proceedings or investigations pending or, to the Knowledge of the
Company, threatened against the Company or any of its Subsidiaries, or
against or involving any properties or rights of the Company or any of its
Subsidiaries, which would, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect. Section 2.10 of the
Company Disclosure Schedule sets forth as of the date of this Agreement the
suits, claims, actions, proceedings and investigations pending, or to the
Knowledge of the Company, threatened against the Company or any of its
Subsidiaries which if adversely determined would result in a liability to the
Company in excess of $100,000. To the Knowledge of the Company, neither the
Company nor any of its Subsidiaries nor any of their respective properties is
or are subject to any order, writ, judgment, injunction, decree,
determination or award having, or which would reasonably be expected to have
a Company Material Adverse Effect. To the Knowledge of the Company, as of
the date of this Agreement no officer of the Company or any Class A Director,
and no officer or director of the Company's Subsidiaries, has been served
with or otherwise has written notice of a written complaint naming such
officer or director as a defendant in any litigation commenced by
stockholders of the Company or any of its Subsidiaries with respect to the
performance of his or her duties as an officer and/or director of the Company
or any of its
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Subsidiaries under any federal or state Law (including litigation under
federal and state securities Laws).
SECTION 3.11. Employee Benefit Plans; Employment Agreements. (a) The
Company has made available to NBC copies of each of its written Company
Employee Plans and a written summary of any unwritten Company Employee Plans.
"Company Employee Plan" shall mean any "employee benefit plan" as defined in
Section 3(3) of ERISA and any other plan, policy, program, practice,
agreement, perquisite, understanding or arrangement providing benefits to any
current or former director, officer, employee or consultant (or to any
spouse, dependent or beneficiary thereof) of the Company or any ERISA
Affiliate, which are now, or were within the past six years, maintained by
the Company or any ERISA Affiliate, or under which the Company or any ERISA
Affiliate has any obligation or liability, including all employment,
severance, retirement, incentive, bonus, deferred compensation, vacation,
holiday, cafeteria, medical, disability, fringe benefit, or stock-based
compensation plans, policies, programs, practices, agreements, perquisites,
understandings or arrangements. "ERISA Affiliate" shall mean any entity
(whether or not incorporated) other than the Company that, together with the
Company, is or was a member of (i) a controlled group of corporations within
the meaning of Section 414(b) of the Code; (ii) a group of trades or
businesses under common control within the meaning of Section 414(c) of the
Code; or (iii) an affiliated service group within the meaning of Section
414(m) of the Code. Each of the severance agreements between the Company or
any of its Subsidiaries and any of their respective employees is
substantially in the form of the form of severance agreement previously
provided to NBC by the Company.
(b) With respect to each Company Employee Plan, the Company has made
available to NBC, prior to the date hereof, true and complete copies of (i)
plan instruments and amendments, summary plan descriptions, and summaries of
material modifications (and written summaries of any unwritten Company
Employee Plans or modifications to Company Employee Plans), (ii) to the
extent annual reports on Form 5500 are required with respect to any Company
Employee Plan, the most recent annual report and attached schedules for each
Company Employee Plan as to which such report is required to be filed, and
(iii) where applicable, the most recent notification or determination letter
and actuarial reports.
(c) Neither the Company nor any ERISA Affiliate during the past six (6)
years has maintained, contributed to or had an obligation to contribute to or
maintain a Company Employee Plan subject to Title IV of ERISA (including,
without limitation, any "multiemployer plan" as defined in Section 3(37) of
ERISA) or to Section 412 of the Code. No Company Employee Plan is a
"multiple employer plan" as described in Section 3(40) of ERISA or Section
413(c) of the Code. Neither the Company nor any ERISA Affiliate has incurred
any withdrawal liability under Title IV of ERISA that remains unsatisfied.
(d) Each Company Employee Plan is and has been operated in all material
respects in compliance with its terms and all applicable Laws. The Company
has made all contributions required to be made by it up to and including the
date hereof with respect to each Company Employee Plan, except where failure
to do so would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect.
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(e) (i) Each Company Employee Plan which is intended to be qualified
within the meaning of Code Section 401(a) has received a favorable
determination letter as to its qualification or has remaining a period of
time under applicable Treasury regulations or IRS pronouncements in which to
apply for such a letter and make any amendments necessary to obtain a
favorable determination as to the qualified status of each such Company
Employee Plan, and to the Knowledge of the Company nothing has occurred,
whether by action or failure to act, that could reasonably be expected to
cause the loss of such qualification; (ii) to the Knowledge of the Company,
no event has occurred and no condition exists that would subject the Company
or any of its Subsidiaries, either directly or by reason of their affiliation
with an ERISA Affiliate to any tax, fine, lien, penalty or other liability
imposed by ERISA, the Code or other applicable Laws; (iii) to the Company's
Knowledge, no "prohibited transaction" (as such term is defined in ERISA
section 406 and Code Section 4975) and not otherwise exempt under Section
4975 of the Code or Sections 408 of ERISA or "accumulated funding deficiency"
(as such term is defined in ERISA Section 302 and Code Section 412 (whether
or not waived)) has occurred with respect to any Company Employee Plan; and
(iv) no Company Employee Plan provides retiree welfare benefits and neither
the Company nor any of its Subsidiaries has any obligation to provide any
retiree welfare benefits other than as required by Section 4980B of the Code;
and neither the Company nor any ERISA Affiliate has engaged in, or is a
successor or parent corporation to any entity that has engaged in, a
transaction described in Section 4069 or 4212(c) of ERISA that would, in the
case of each of clauses (ii) or (iv), individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
(f) With respect to any Company Employee Plan, no actions, suits or
claims (other than routine claims for benefits in the ordinary course) are
pending that would, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect or, to the Knowledge of the
Company, threatened, and to the Knowledge of the Company, no facts or
circumstances exist that could reasonably be expected to give rise to any
such actions, suits or claims.
(g) Except as set forth in Section 2.8 of this Agreement, no Company
Employee Plan exists that could result in the payment to any present or
former director, officer, employee or consultant of the Company or any of its
Subsidiaries of any money or other property or accelerate or provide any
other rights or benefits to any present or former employee of the Company or
any of its Subsidiaries as a result of the consummation of the Transactions
or as a result of the termination of employment of any such employee within a
specified period of time after such consummation.
SECTION 3.12. Labor Matters. There are no strikes, slowdowns, work
stoppages or lockouts pending or, to the Knowledge of the Company,
threatened, between the Company or any of its Subsidiaries and any of their
respective employees. Neither the Company nor any of its Subsidiaries is a
party to, or bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization. To the
Knowledge of the Company, the Company and each of its Subsidiaries is in
compliance with all applicable Laws, agreements, contracts, and policies
relating to employment, employment practices, wages, hours, and terms and
conditions of employment except for failures so to comply, if any, that,
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
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SECTION 3.13. Proxy Statement, Schedule 13E-3. The proxy statement to
be sent to the stockholders of the Company in connection with the meeting of
the stockholders of the Company to consider the adoption of this Agreement
and approval of the Transactions (the "Company Stockholders Meeting") (such
proxy statement as amended or supplemented is referred to herein as the
"Proxy Statement") will not, on the date the Proxy Statement (or any
amendment thereof or supplement thereto) is first mailed to stockholders or
at the time of the Company Stockholders Meeting, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or omit to state
any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the Company
Stockholders Meeting which has become untrue or misleading. The Statement on
Schedule 13E-3 (such Statement, as amended or supplemented, is referred to
herein as the "Schedule 13E-3") to be filed by the Company concurrently with
the filing of the Proxy Statement, will not, at the time it is first filed
with the SEC, and at any time it is amended or supplemented and at the time
of the Company Stockholders Meeting, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Proxy Statement
and the Schedule 13E-3 shall comply as to form in all material respects with
the requirements of the Exchange Act. Notwithstanding the foregoing, the
Company makes no representation or warranty with respect to any information
supplied by or on behalf of NBC or Merger Sub in writing specifically for
inclusion in the Proxy Statement or the Schedule 13E-3.
SECTION 3.14. Restrictions on Business Activities. There is no
agreement, judgment, injunction, order or decree binding upon the Company or
any of its Subsidiaries which has or would reasonably be expected to have the
effect of prohibiting or impairing the conduct of any business after the
Effective Time by the Surviving Company or any of its Subsidiaries or the NBC
or any of its Affiliates, including, without limitation, any agreements that
expressly limit the ability after the Effective Time of the Surviving Company
or any of its Subsidiaries or the NBC or any of its Affiliates, to compete in
or conduct any line of business or compete with any Person in any geographic
area or during any period of time.
SECTION 3.15. Material Contracts. (a) Section 3.15(a) of the Company
Disclosure Schedule accurately lists the following legally binding contracts,
agreements, commitments, arrangements, leases, licenses, policies and
instruments, whether written or oral ("Contracts") undertaken by or for the
Company or any of its Subsidiaries and to which the Company or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound
(collectively, "Material Contracts"):
(i) any Contract involving commitments to others to make capital
expenditures involving $25,000 or more in any one case, except Contracts for
which the obligations of the Company and its Subsidiaries are fully reflected
in the capital expenditure budget of the Company for the fiscal quarter
ending June 30, 2001 previously provided to NBC (the "Cap Ex Budget");
(ii) (A) any Contract relating to any direct or indirect indebtedness
for borrowed money (including but not limited to loan agreements,
lease-purchase
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arrangements, guarantees, agreements to purchase goods or services or to
supply funds or other undertakings on which others rely in extending credit),
or (B) any conditional sales contracts, chattel mortgages, equipment lease
agreements, and other security arrangements with respect to personal property
with a value in excess of $25,000 in each instance used or owned by the
Company or any of its Subsidiaries;
(iii) any lease for real property;
(iv) any Contract containing covenants limiting the ability of the
Company or any of its Subsidiaries to compete in any line of business with
any person or in any area or territory;
(v) any material license agreement either as licensor or licensee, or
any other agreement of any type relating to any of the material Intellectual
Property owned or used by the Company or any of its Subsidiaries;
(vi) (A) any Contract for advertising, promotion, distribution, content
or anchor tenancy providing for payments by or to the Company or any of its
Subsidiaries, whether in cash or Equity Interests, in excess of $25,000 and
(B) any material content Contract;
(vii) any Contract with any consultant providing for the payments by the
Company or any of its Subsidiaries, whether in cash or Equity Interests, in
excess of $100,000; and
(viii) any Contract not covered by any of the other items of this
Section 3.15 that provides for payments by the Company, whether in cash or
Equity Interests, or performance of other obligations, in excess of $50,000,
except Contracts that may be terminated without liability, obligation or
penalty by the Company or its Subsidiary on not more than 30 days' notice.
(b) As of the date of this Agreement, neither the Company nor any of
its Subsidiaries is, and to the Company's knowledge no other party is, in
default or breach of any Material Contract, except for those defaults which
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, and as of the date of this Agreement there
has not occurred any event that with the lapse of time or the giving of
notice or both would constitute such a default, except for those defaults
which would not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect. The Company is not a party to any
Material Contract that is required to be disclosed as an exhibit to the SEC
Documents in accordance with the rules and regulations of the SEC that has
not been so disclosed. All advertising agreements referred to in Section
3.15(a)(vi) are substantially in the form of the form of advertising
agreement previously provided to NBC by the Company.
SECTION 3.16. Taxes. The reserves for Taxes as shown on the 2000
Balance Sheet are sufficient for the payment of all accrued but unpaid Taxes
of the Company and each of its Subsidiaries, for all periods ending on or
prior to December 31, 2000. All Tax Returns required to be filed by the
Company and its Subsidiaries have been filed when due in accordance
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with all applicable Laws. To the Knowledge of the Company, all such Tax
Returns were correct and complete as filed in all material respects in
accordance with all applicable Laws. All Taxes shown to be due on such Tax
Returns have been timely paid, withheld or remitted to the appropriate taxing
authority, the Company has made adequate provision in accordance with GAAP
for all Taxes not yet due and payable and, to the Knowledge of the Company,
there is no audit, dispute, claim, action, proceeding or investigation
pending or threatened with respect to any such Tax Returns or any Taxes shown
thereon. Neither the Company nor any of its Subsidiaries has received any
written notice of any deficiency with respect to the payment of any Taxes.
Neither the Company nor its Subsidiaries are party to, bound by or have any
obligation under, any tax sharing agreement or similar contract or
arrangement or any agreement that obligates it to make any payment computed
by reference to the Taxes, taxable income or taxable losses of any other
person. There are no Liens with respect to Taxes on any of the assets or
properties of the Company or any of its Subsidiaries other than with respect
to Taxes not yet due and payable. The Company and its Subsidiaries (i) are
not, and have not been, a member of an affiliated group filing a consolidated
federal income Tax Return other than a group the common parent of which is
the Company, and (ii) have no liability for the Taxes of any Person under
Treasury Regulation 1.1502-6 (or any similar provision of state, local or
foreign Law), or as a transferee or successor, by contract or otherwise.
SECTION 3.17. Brokers. None of the Company, its Subsidiaries or their
respective officers or directors has employed any broker, finder or financial
advisor or otherwise incurred any liability for any brokerage fees,
commissions or financial advisors' or finders' fees in connection with the
Transactions, other than Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇, Inc., the fees and
expenses of which shall be borne by the Company. The Company has heretofore
furnished to NBC complete and correct copies of all agreements between the
Company and its Subsidiaries and its financial advisors pursuant to which
such firms would be entitled to any payment relating to the Transactions or
this Agreement.
SECTION 3.18. Intellectual Property. (a) The Company and its
Subsidiaries own, are licensed or otherwise have the right to use all
Intellectual Property necessary to conduct the business of the Company and
its Subsidiaries (the "Company IP"), in the fashion such Intellectual
Property has been used in the business of Company and its Subsidiaries prior
to the Closing, except where the failure to own or be licensed or otherwise
have such rights in any such Company IP, would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) to Company's Knowledge, the Company IP that is owned in whole or in
substantial part by Company and/or its Subsidiaries ("Company-Owned IP") is
enforceable and unexpired, has not been abandoned and is free of all liens,
except to the extent such unenforceablity, expiration or abandonment would
not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect;
(c) neither the Company nor any of its Subsidiaries has received any
written notice with respect to any alleged infringement or unlawful use by
the Company or its Subsidiaries of any Intellectual Property right owned or
alleged to be owned by any Third Party that would, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect,
and to the Company's Knowledge, the use of the Company IP in the business of
-22-
Company and its Subsidiaries prior to Closing has not infringed or
misappropriated the Intellectual Property right of any Third Party in a
fashion that would, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect;
(d) to the Company's Knowledge, the Company-Owned IP is not being
infringed by any Third Party in any fashion that has had or would,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect prior to the Closing;
(e) the Company has taken reasonable steps to protect and maintain the
rights in the Company-Owned IP; and
(f) no government action is outstanding or pending, or to the Company's
Knowledge, threatened, that seeks to limit or challenge the validity,
enforceability, ownership or use of any Company IP, in either case in a
fashion that would reasonably be expected to have a Company Material Adverse
Effect.
For purposes of this Section 3.18, "Company IP" will exclude any and all
Intellectual Property licensed or otherwise provided to Company or its
Subsidiaries by NBC or its Affiliates (other than Company and its
Subsidiaries), including without limitation any Intellectual Property
provided or licensed under that certain Brand Integration and License
Agreement between Company and NBC dated May 8, 1999.
SECTION 3.19. Privacy Rights. The Company (i) takes all necessary and
advisable actions to prevent any Person from unauthorized or improper use of
or access to its systems or services or the information of any other Person
contained therein; and (ii) complies with all governing industry standards
and sound and reputable business practice regarding rights of any Person
concerning confidential information or personal privacy, including all rights
provided under international, foreign, U.S. and state laws, treaties,
compacts or directives respecting invasion of privacy or the obtaining,
storing, using or transmitting of personal information of any type; except in
each case as would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
SECTION 3.20. Insurance. The Company has made available to NBC all
material fire and casualty, general liability, business interruption and
other insurance policies (collectively, "Insurance Policies") maintained by
the Company or any of its Subsidiaries. Such policies are in full force and
effect as of the date of this Agreement and with respect to all policies
neither the Company nor any of its Subsidiary is delinquent in the payment of
any premiums thereon, and no notice of cancellation or termination has been
received with respect to any such policy.
SECTION 3.21. No Rights Plan. Neither the Company nor any of its
Subsidiaries has any rights plan or similar preferred stock purchase plan or
similar arrangement.
SECTION 3.22. Opinion of Financial Advisor. The Board of Directors has
received the opinion of Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇, Inc., financial
advisor to the Board of Directors, to the effect that, as of the date of this
Agreement, the Consideration to be received in the Merger by the holders of
shares of Class A Common Stock (other than NBC and its
-23-
Affiliates) is fair to such holders from a financial point of view. A true
and complete copy of such written opinion has been, or as soon as practicable
will be, delivered to NBC.
SECTION 3.23. Board Approvals. (a) The Class A Directors and the
Class B Directors, voting as separate classes, have unanimously determined
that the Merger and the Consideration to be paid to the holders of Class A
Common Stock in the Merger are fair to and in the best interests of the
holders of Class A Common Stock and have unanimously approved this Agreement.
The Board of Directors of the Company, at a meeting duly called and held on
April 8, 2001, has unanimously (i) determined that this Agreement and the
Merger and the Consideration to be paid to the holders of Class A Common
Stock are fair to and in the best interests of the holders of Class A Common
Stock and (ii) resolved to recommend that the holders of the shares of Common
Stock adopt this Agreement and approve the Merger and the other Transactions.
(b) By unanimous written consents, the Boards of Directors of the
Company and Merger Sub (in accordance with Sections 141(f) and 203 of the
DGCL) have (i) approved this Agreement and the Transactions and (ii) declared
the advisability thereof.
SECTION 3.24. Votes Required. Under the DGCL (including, without
limitation, Section 203), the Company's Charter Documents and any other
applicable Law or stock exchange rules, the only vote required of the holders
of any class or series of the Company's Equity Interests necessary to adopt
this Agreement and to approve the Transactions is the approval, assuming a
quorum is present, of (i) a majority of the shares of Class A Common Stock
and Class B Common Stock voting together as a single class, (ii) a majority
of the shares of Class A Common Stock voting as a single class and (iii) a
majority of the shares of Class B Common Stock voting as a single class.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NBC
NBC hereby represents and warrants to the Company as follows:
SECTION 4.1. Organization and Good Standing. Each of NBC and Merger
Sub is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted, except where the failure to be
so organized, existing and in good standing or to have such power, authority
and governmental approvals would not, individually or in the aggregate,
reasonably be expected to have a NBC Material Adverse Effect.
SECTION 4.2. Capitalization. The authorized capital stock of the
Merger Sub consists solely of 100 shares of Merger Sub Common Stock, all of
which shares of Merger Sub Common Stock are owned by NBC and are validly
issued and outstanding, fully paid and nonassessable and free of preemptive
or similar rights. No shares of Merger Sub Common Stock are issuable upon
the exercise or conversion of options, warrants or convertible securities of
any kind.
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SECTION 4.3. Authority Relative to this Agreement. Each of NBC and
Merger Sub has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions. The execution and
delivery of this Agreement by Merger Sub, and the consummation by NBC and
Merger Sub of the Transactions, have been duly and validly authorized by all
necessary corporate action of NBC and Merger Sub, and no other corporate
proceedings on the part of Merger Sub are necessary to authorize this
Agreement or to consummate the Transactions. This Agreement has been duly
and validly executed and delivered by each of NBC and Merger Sub and,
assuming the due authorization, execution and delivery hereof by the Parties,
constitutes the legal, valid and binding obligation of each of NBC and Merger
Sub, enforceable against NBC and Merger Sub in accordance with its terms,
except to the extent limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other laws affecting the rights of creditors
generally and to the extent that the availability of equitable remedies may
be limited by equitable principles.
SECTION 4.4. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by each of NBC and Merger Sub do
not, and the performance of this Agreement by NBC and Merger Sub and the
consummation of the Transactions will not, (i) conflict with or violate the
Certificate of Incorporation or By-laws of NBC or Merger Sub, as the case may
be, (ii) assuming that all consents, approvals and authorizations
contemplated by clauses (i) and (iii) of Section 4.4(b) have been obtained
and all filings described in such clauses have been made, conflict with or
violate any Law applicable to NBC or Merger Sub or by which NBC or Merger Sub
or any of their respective properties is bound or affected, or (iii) result
in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a Lien on any of the properties or assets of NBC or Merger
Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument to which NBC or Merger
Sub is a party or by which NBC or Merger Sub or any of their respective
material properties is bound or affected, except, in the case of clauses (ii)
and (iii) of this Section 4.4(a), for any conflict, violation, breach,
default, impairment or right that would not, individually or in the
aggregate, reasonably be expected to have a NBC Material Adverse Effect.
(b) The execution and delivery of this Agreement by NBC and Merger Sub
do not, and the performance of this Agreement by NBC and Merger Sub will not,
require any consent, approval, authorization or permit of, or filing with any
Governmental Authority, except (i) for (A) applicable requirements, if any,
of the Exchange Act, state securities Laws, the pre-merger notification
requirements of the HSR Act and filings and consents under any similar
non-competition Laws, (C) filings and consents as may be required under any
environmental, health or safety Law pertaining to any notification,
disclosure or required approval triggered by the Transactions, and (D) the
filing and recordation of the appropriate documents with respect to the
Transactions in accordance with the DGCL, (ii) where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings
or notifications, would not, individually or in the aggregate, reasonably be
expected to have a NBC Material Adverse Effect, or (iii) consents, approvals,
authorizations, permits, filings or notifications which have heretofore been
obtained or made, as the case may be, by NBC or Merger Sub and is in full
force and effect.
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SECTION 4.5. Absence of Litigation. As of the date hereof, there are
no claims, actions, suits, proceedings or investigations pending or, to the
Knowledge of NBC, threatened against NBC or Merger Sub before any court,
arbitrator or administrative, governmental or regulatory authority or body,
domestic or foreign, which seeks to enjoin or otherwise challenges the
consummation of the Transactions or would reasonably be expected to have a
NBC Material Adverse Effect.
SECTION 4.6. Proxy Statement; Schedule 13E-3. The information
supplied or to be supplied in writing by or on behalf of NBC or Merger Sub
specifically for inclusion (i) in the Proxy Statement will not, on the date
the Proxy Statement (or any amendment thereof or supplement thereto) is first
mailed to stockholders or at the time of the Company Stockholders Meeting,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or omit to state any material fact necessary to correct
any statement in any earlier communication with respect to the solicitation
of proxies for the Company Stockholders Meeting which has become untrue or
misleading or (ii) the Schedule 13E-3, to be filed by the Company
concurrently with the filing of the Proxy Statement, will not at the time it
is first filed with the SEC, and at any time it is amended or supplemented
and at the time of the Company Stockholders Meeting, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. No
Contracts undertaken by or for NBC or any of its Subsidiaries and to which
NBC or any of its Subsidiaries is a party, or by which it or any of its
Subsidiaries is bound, exist between NBC or any of its Subsidiaries, on the
one hand, and any Class A Director or officer of the Company, on the other
hand, other than those referenced in the Company SEC Reports. Notwithstanding
the foregoing, NBC makes no representation or warranty with respect to any
information supplied by the Company that is contained or incorporated by
reference in, or furnished in connection with the preparation of, the Proxy
Statement or the Schedule 13E-3.
SECTION 4.7. Brokers. None of NBC or Merger Sub or its officers or
directors has employed any broker, finder or financial advisor or otherwise
incurred any liability for any brokerage fees, commissions or financial
advisors' or finders' fees in connection with the Transactions.
SECTION 4.8. No Prior Activities of Merger Sub. Merger Sub was
incorporated on April 6, 2001. Except in connection with its incorporation
or the negotiation and consummation of this Agreement and the Transactions,
Merger Sub has no material properties or assets or incurred any obligation or
liability and has not engaged in any business or activity of any type or kind
whatsoever or entered into any agreement or arrangement with any Person.
Merger Sub has no Subsidiaries.
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ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1. Conduct of Business by the Company Pending the Merger.
The Company covenants and agrees that, during the period from the date of
this Agreement and continuing until the earlier of the termination of this
Agreement and the Effective Time (the "Interim Period"), except as set forth
in Section 5.1 of the Company Disclosure Schedule or Section 5.2 or 5.3 of
this Agreement or with the prior written consent of NBC, the Company shall
conduct its business and shall cause the businesses of its Subsidiaries
(including with respect to the collection of accounts receivable and the
payment of accounts payable) to be conducted only in, and the Company and its
Subsidiaries shall not take any action except in, the ordinary course of
business. By way of amplification and not limitation, except as provided in
this Agreement, neither the Company nor any of its Subsidiaries shall, during
the Interim Period, except as set forth in Section 5.1 of the Company
Disclosure Schedule or in Section 2.8, 5.2 or 5.3 of this Agreement, directly
or indirectly do, or propose or agree to do, any of the following without the
prior written consent of NBC, provided that solely in the case of actions set
forth in clause (c), (i), (j), (k), (l) or (t) below if such consent is not
denied within three (3) business days after receipt of written notice by NBC
in accordance with the provisions hereof, such consent shall be deemed
granted:
(a) amend or otherwise change the Company Charter Documents or any of
the Subsidiary Documents or agree to any change in the Minority Investment
Documents;
(b) issue, sell, pledge, dispose of or encumber, or authorize the
issuance, sale, pledge, disposition or encumbrance of, any Equity Interests
of the Company or any of its Subsidiaries (except for the issuance of shares
of Class A Common Stock issuable upon the exercise of Company Options and
Company Warrants outstanding on the date hereof);
(c) sell, pledge, dispose of, mortgage, otherwise encumber or subject
to any Lien any assets of the Company or any of its Subsidiaries (except for
sales of immaterial assets on an arms-length basis having a fair market value
not in excess of $10,000 in any individual transaction or $20,000 in the
aggregate);
(d) (i) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof)
in respect of any of its Equity Interests, (ii) split, combine or reclassify
any of its Equity Interests or issue or authorize or propose the issuance of
any other securities in respect of, in lieu of or in substitution for its
Equity Interests, (iii) amend the terms or change the period of
exercisability of, purchase, repurchase, redeem or otherwise acquire any of
the Company's or its Subsidiary's securities, including shares of Class A
Common Stock, or any option, warrant or right, directly or indirectly, to
acquire any such securities, or (iv) settle, pay or discharge any claim, suit
or other action brought or threatened against the Company with respect to or
arising out of an Equity Interests in the Company;
(e) (i) (A) incur any indebtedness for borrowed money, (B) issue or sell
any debt securities or warrants or other rights to acquire any debt
securities of the Company or any of its Subsidiaries, (C) make any loans,
advances (other than to employees of and consultants to the Company for
travel and other reasonable and customary expenses incurred in the ordinary
course of business consistent with past practice) or capital contributions
to, or investments in, any other Person, other than to the Company or any
direct or indirect wholly-owned Subsidiary of the
-27-
Company or (D) assume, guarantee or endorse, or otherwise as an accommodation
become responsible for, the obligations of any Person, or (ii) enter into or
materially amend any contract, agreement, commitment or arrangement to effect
any of the transactions prohibited by this Section 5.1(e);
(f) (i) grant any new or modified severance or termination arrangement
or increase or accelerate any benefits payable under the severance or
termination pay policies in effect on the date hereof except as required by
any existing policies or agreements, (ii) enter into any employment
agreements or increase any compensation or benefits (whether payable in cash,
stock or otherwise) payable or to become payable to any of its employees
except as required by any existing agreements, or (iii) establish, adopt,
enter into or amend any collective bargaining agreement, Company Employee
Plan, trust, fund, program, practice, understanding, perquisite, contract,
policy or arrangement for the benefit of any current or former director,
officer, employee or consultant or any of their spouses, dependents or
beneficiaries, except, in each case, as may be required by law;
(g) take any action to change any of the accounting policies or
procedures used by it (including procedures with respect to revenue
recognition, payments of accounts payable and collection of accounts
receivable), except as required by GAAP;
(h) make any material tax election or settle or compromise any United
States federal, state, local or non-United States material tax liability,
make or change any method of accounting with respect to any Tax, file any
amended Tax Return with respect to any material Tax or settle or compromise
any material federal, state, local or foreign Tax liability;
(i) pay, discharge or satisfy any claim, liability or obligation,
including without limitation any litigation, investigation, arbitration or
other proceeding, in excess of $25,000 in any individual case or $250,000 in
the aggregate;
(j) acquire or agree to acquire any assets, other than (i) supplies in
the ordinary course of business consistent with past practice or (ii)
furniture, fixtures and equipment on order, in each case not exceeding
$10,000 in any individual transaction or $20,000 in the aggregate;
(k) make any capital expenditures other than as set forth in the cash
forecasts previously provided to NBC and in any event not exceeding $5,000
for any individual transaction or $20,000 in the aggregate, in each case
other than pursuant to any currently existing Contracts included in the Cap
Ex Budget;
(l) pay, discharge or satisfy any material claims (including claims of
stockholders), liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), except for the payment, discharge or
satisfaction of (x) liabilities or obligations in accordance with their terms
as in effect on the date hereof, or (y) claims settled or compromised to the
extent permitted by Section 5.1(i), or waive, release, grant, or transfer any
rights of material value or modify or change in any material respect any
existing material license, lease, contract or other document, other than in
the ordinary course of business consistent with past practice;
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(m) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of the Company or any of its Subsidiaries (other than the
Transactions);
(n) acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the stock or assets of, or by any other
manner, any business or any corporation, partnership, joint venture,
association or other business organization or division thereof;
(o) make any investment in any other entity or business, whether by
means of a purchase of Equity Interests or assets, or by any other manner;
(p) amend or modify in any material respect or terminate any material
existing IP Contract, execute any new IP Contract that would be material to
the business of the Company and its Subsidiaries taken as a whole, sell,
license or otherwise dispose of, in whole or in part, any material Company
IP, and/or subject any material Company IP to any material Lien other than
license for any generally commercially available software;
(q) enter into any agreement prohibiting or impairing the conduct of
any business after the Effective Time by the Surviving Company or any of its
Subsidiaries or NBC or any of its Affiliates, including, without limitation,
any agreements that expressly limit the ability of after the Effective Time
of the Surviving Company or any of its Subsidiaries or NBC or any of its
Affiliates to compete in or conduct any line of business or compete with any
Person in any geographic area or during any period of time;
(r) engage in any transaction with, or enter into any agreement,
arrangement, or understanding with, directly or indirectly, any of the
Company's Affiliates, directors or officers or any holder, beneficially or of
record, of more than five percent (5%) of any class of the Company's capital
stock;
(s) commence any litigation, or commence any other proceeding before
any Governmental Authority;
(t) enter into any other agreement or commitment (i) that would be a
Material Contract or (ii) (A) requiring total payments by or to the Company
in excess of an aggregate of $10,000 (whether in cash, Equity Interests or
other barter) and (B) not terminable by the Company without penalty or
payment upon no more than thirty (30) days prior notice; or
(u) authorize any of, or commit or agree to take any of, the foregoing
actions.
SECTION 5.2. Additional Agreements with Respect to Conduct of Business
by the Company. The Company covenants and agrees that it will consult with
NBC as to the reduction of the Company's operations during the Interim
Period. NBC will jointly participate with the Company's personnel in
determining the scope of such reduction and the actions to be taken to effect
it. The Company and NBC agree that within one (1) week of the date hereof,
they will mutually agree upon an initial reduction plan (the "Reduction
Plan") identifying specific contractual arrangements and liabilities of the
Company and its Subsidiaries to be terminated, paid, discharged or satisfied
during the Interim Period. The Company agrees to use reasonable
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commercial efforts to terminate and pay, discharge or satisfy during the
Interim Period the arrangements and liabilities set forth in the reduction
plan, and any other arrangements and liabilities of the Company and its
Subsidiaries reasonably required by NBC. Notwithstanding the foregoing, no
provision of this Section 5.2 shall require the Company to take any action
that the Class A Directors determine in good faith by majority vote would
have a material adverse effect on the Company in the event the Agreement were
terminated prior to the Effective Time. The Company agrees to obtain NBC's
written consent prior to making any material commitments or incurring any
material liability or other obligation in connection with such reduction
other than as set forth in any reduction plan mutually agreed upon by the
Company and NBC. In particular, the Company agrees it shall obtain the prior
written consent of NBC to any termination, discharge or satisfaction
involving payment by the Company exceeding $25,000 for any individual
obligation. In addition, the Company agrees to continue to purchase and
broadcast advertising pursuant to the advertising agreement between the
Company and NBC dated as of November 30, 1999, consistent with the level of
such purchases provided in the Company budget as of the date hereof.
SECTION 5.3. Additional Agreements with Respect to Employees. The
Company agrees that during the Interim Period, it will terminate its
employment of the numbers of employees set forth in Section 5.3 of the
Company Disclosure Schedule by the corresponding dates set forth therein. NBC
and the Company agree to review such termination schedule in good faith on an
ongoing basis during the Interim Period, and may modify such schedule as
necessary to enable the Company to comply with Section 5.2 and the other
provisions hereof. Notwithstanding the foregoing, no provision of this
Section 5.3 shall require the Company to take any action that the Class A
Directors determine in good faith by majority vote would, as a result of
developments after the date of this Agreement, have a material adverse effect
on the Company in the event the Agreement were terminated prior to the
Effective Time. NBC acknowledges that in performing its obligations under
this Section 5.3 in accordance herewith, the Company may not be able to
comply with the notice requirements of the Worker Adjustment and Retraining
Notification Act of 1988 and the Company may be required to provide
compensation in lieu thereof to certain terminated employees.
SECTION 5.4. No Solicitation. (a) The Company shall not, directly or
indirectly, through any officer, director, employee, representative, advisor,
Subsidiary or agent of the Company or any of its Subsidiaries, (i) solicit or
initiate any inquiries, proposals or offers (whether or not in writing) from
any Third Party regarding an Alternative Transaction (any of the foregoing
inquiries, proposals or offers being referred to herein as an "Acquisition
Proposal") or provide any non-public information in respect of any
Acquisition Proposal or any of the foregoing, or (ii) enter into or
participate in any discussions or negotiations regarding any of the
foregoing. Nothing contained in this Agreement shall prevent the Board of
Directors of the Company from (A) furnishing information to a Third Party
which has made an Acquisition Proposal not solicited in violation of this
Agreement that the Board of Directors or a majority of the Class A Directors
has concluded constitutes or could result in a Superior Proposal, or (B)
subject to compliance with the other terms of this Section 5.4, entering into
or participating in discussions or negotiations concerning an Acquisition
Proposal not solicited in violation of this Agreement that the Board of
Directors or a majority of the Class A Directors has concluded constitutes or
could result in a Superior Proposal.
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(b) For purposes of this Agreement, a "Superior Proposal" means any of
the transactions described in the definition of Alternative Transaction (with
all of the percentages included in the definition of such term raised to 50%
for purposes of this definition) with respect to which the Board of Directors
of the Company shall have concluded in good faith, after consultation with
its outside legal counsel and its financial advisor(s), (i) is reasonably
capable of being completed and (ii) represents a superior transaction for the
holders of Class A Common Stock to the Transactions.
(c) For purposes of this Agreement, an "Alternative Transaction" means
any of (i) a transaction pursuant to which a Third Party acquires or would
acquire more than fifteen percent (15%) of the outstanding shares of any
class of Equity Interests of the Company or any of its Subsidiaries, whether
from the Company or pursuant to a tender offer or exchange offer or
otherwise, (ii) a merger, consolidation, business combination, sale of
substantially all assets, recapitalization, liquidation, dissolution or
similar transaction involving the Company or any of its Subsidiaries, (iii)
any transaction pursuant to which any Third Party acquires or would acquire
control of assets (including for this purpose the outstanding Equity
Interests of Subsidiaries of the Company and securities of the entity
surviving any merger or business combination involving any of the Company's
Subsidiaries) of the Company, or any of its Subsidiaries having a fair market
value (as determined by the Board of Directors of the Company in good faith)
equal to more than fifteen percent (15%) of the fair market value of, on a
consolidated basis, the assets of the Company and its Subsidiaries
immediately prior to such transaction, or (iv) any other transaction the
consummation of which would or could reasonably be expected to impede,
interfere with, prevent or materially delay either of the Transactions or
which would or could reasonably be expected to materially dilute the benefits
to NBC of the Transactions.
(d) Except as expressly permitted by this Section 5.4, neither the
Board of Directors of the Company nor any committee thereof nor the Class A
Directors shall withdraw or modify in any manner adverse to NBC, the
recommendation by the Board of Directors of the adoption of this Agreement by
the stockholders of the Company. Notwithstanding the foregoing, (x) the
Board of Directors or the Class A Directors may withdraw or modify in any
manner adverse to NBC their recommendation of the adoption of this Agreement
by the stockholders of the Company if they determine in good faith, based on
the advice of their outside legal advisors, that such action is required to
comply with their fiduciary duties under the DGCL, and (y) in the event that
the Board of Directors receives an Acquisition Proposal and the Class A
Directors or the Board of Directors determine in good faith, after
consultation with their financial and legal advisors, that failure to do so
is reasonably likely to be inconsistent with their fiduciary duties under the
DGCL, the Class A Directors and the Board of Directors may (i) withdraw or
modify in any manner adverse to NBC their recommendation of the adoption of
this Agreement by the stockholders of the Company and (ii) subject to this
Section 5.4(e) and Section 8.1(f), terminate this Agreement pursuant to
Section 8.1(f) (and concurrently with or after such termination, if it so
chooses, the Board of Directors may cause the Company to enter into any
letter of intent, agreement in principle, acquisition agreement or other
similar agreement (an "Acquisition Agreement")), but only after the third
Business Day following NBC's receipt of written notice advising NBC that the
Board of Directors or the Class A Directors are prepared to accept a Superior
Proposal, and attaching the most current version of any such Superior
Proposal or any draft of an Acquisition Agreement.
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(e) Nothing contained in this Section 5.4 shall prohibit the Company
from taking and disclosing to its stockholders a position, and making related
filings with the SEC, as required by Rule 14e-2(a) promulgated under the
Exchange Act or from making any disclosure to its stockholders if, in the
good faith judgment of the Board of Directors, after consultation with
outside counsel, failure to do so is reasonably likely to cause the Board of
Directors to be in breach of its obligations under any applicable law, rule
or regulation.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1. Proxy Statement and Schedule 13E-3. As promptly as
practicable after the execution of this Agreement, the parties shall
cooperate and promptly prepare, and the Company shall file with the SEC as
soon as practicable the Proxy Statement and NBC and the Company shall file
with the SEC as soon as practicable the Schedule 13E-3. Each of the Company
and NBC shall cooperate with each other in connection with the preparation of
the Proxy Statement and the Schedule 13E-3 including, but not limited to,
furnishing information required to be disclosed in the Proxy Statement and
the Schedule 13E-3. The information provided and to be provided by NBC and
the Company, respectively, for use in (i) the Proxy Statement will, at the
time the Proxy Statement is filed with the SEC and on the date of the Company
Stockholders Meeting, not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and the Company and NBC
each agree to correct any information provided by it for use in the Proxy
Statement which shall have become untrue or misleading in any material
respect and (ii) the Schedule 13E-3 to be filed with the SEC by the Company
concurrently with the filing of the Proxy Statement will, at the time it is
first filed with the SEC, and at any time it is amended or supplemented and
at the time of the Company Stockholders Meeting, not 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. The
Company will promptly notify NBC of the receipt of any comments from the SEC,
of any request by the SEC for any amendment to the Proxy Statement or the
Schedule 13E-3 or for additional information, and will supply NBC with copies
of all correspondence between the Company or any of its representatives and
the SEC, with respect to the Proxy Statement or the Schedule 13E-3. The
Company will permit NBC to review and comment upon all filings with the SEC,
including the Proxy Statement and the Schedule 13E-3 and any amendment
thereto. All mailings to the Company's stockholders in connection with the
Merger, including the Proxy Statement, shall be subject to the prior review
and comment by NBC. The Company agrees to use its commercially reasonable
best efforts, after consultation with NBC, to respond as promptly as
reasonably practicable to any comments made by the SEC with respect to the
Proxy Statement, any preliminary version thereof filed by it and to cause the
Proxy Statement to be mailed to the Company's stockholders at the earliest
practicable time. The Company and NBC agree to cooperate to respond as
promptly as reasonably practicable to any comments made by the SEC with
respect to the Schedule 13E-3.
SECTION 6.2. Company Stockholders Meeting; Voting Agreement of NBC.
(a) The Company shall call the Company Stockholders Meeting as promptly as
reasonably
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practicable for the purpose of voting upon the adoption of this Agreement and
the approval of the Transactions and the Company shall use its reasonable
best efforts to hold the Company Stockholders Meeting as soon as reasonably
practicable. Subject to Section 5.4(d), the Company, through its Board of
Directors, will, as promptly as reasonably practicable following the date of
this Agreement, recommend to its stockholders the adoption of this Agreement
and the approval of the Transactions as set forth in Section 3.23(a) and
shall solicit from its stockholders proxies in favor of the adoption of this
Agreement and the Transactions and shall take such other reasonable actions
that are necessary or advisable to secure the vote or consent of stockholders
in favor of such adoption and approval. Subject to Section 5.4(d) hereof,
any such recommendation, together with a copy of the opinion referred to in
Section 3.22 shall be included in the Proxy Statement.
(b) NBC hereby agrees to vote or consent (or cause to be voted or
consented), in person or by proxy, at the Company Stockholders Meeting, all
Class B Stock and any other voting securities of the Company (whether
acquired heretofore or hereafter) that are beneficially owned or held of
record by NBC or as to which NBC has, directly or indirectly, the right to
vote or direct the voting as of the relevant record date, in favor of the
adoption of this Agreement and the approval of the Transactions.
SECTION 6.3. Access to Information; Confidentiality. Upon reasonable
notice and subject to restrictions contained in confidentiality agreements to
which the Company is subject (from which it shall use commercially reasonable
efforts to be released), the Company shall (and shall cause its Subsidiaries
to) (i) during the period after the execution and delivery of this Agreement
and prior to the Effective Time, afford to the officers, employees,
accountants, counsel and other representatives of NBC reasonable access to
its properties, books, contracts, commitments and records, and (ii) during
such period, furnish promptly to NBC all information concerning its business,
properties and personnel as NBC may reasonably request, and shall make
available to NBC for reasonable periods of time the appropriate individuals
(including attorneys, accountants and other professionals) for discussion of
the Company's business, properties and personnel as NBC may reasonably
request. NBC shall keep such information confidential in accordance with,
and agrees to be bound by, the terms of the confidentiality letter, dated
March 26, 2001 (the "Confidentiality Letter") between NBC and the Company.
No investigation pursuant to this Section 6.3 shall affect any
representations or warranties of the parties herein or the conditions to the
obligations of the parties hereto.
SECTION 6.4. Consents; Approvals. Each of the Company and NBC shall
use its commercially reasonable efforts to obtain all consents, waivers,
approvals, authorizations or orders (including all consents, waivers,
approvals, authorizations and orders from all Governmental Authorities or
other Third Parties); provided that without the prior written consent of NBC,
which consent shall not be unreasonably withheld or delayed, neither the
Company nor any of its Subsidiaries shall pay any cash or other
consideration, make any commitments or incur any liability or other
obligation to obtain any such consent. The Company and NBC shall make all
filings (including all filings with any Governmental Authority) required in
connection with the authorization, execution and delivery of this Agreement
by the Company and NBC and the consummation by them of the Transactions. The
Company and NBC shall furnish all information required to be included in the
Proxy Statement, the Schedule 13E-3 or for any application or other filing to
be made pursuant to the rules and regulations of any Governmental
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Authority in connection with the Transactions. Each of the Company and NBC
shall make an appropriate filing of a notification and report form pursuant
to the HSR Act with respect to the Transactions within ten days after the
date hereof and shall promptly supply any additional information that may be
requested pursuant to the HSR Act. The Company and NBC shall each use
reasonable commercial efforts to obtain early termination of the waiting
period under the HSR Act. In addition, the Company and NBC shall each
promptly make any other filing that may be required under any other antitrust
law or by any antitrust authority or any takeover laws of jurisdictions
outside of the United States. Notwithstanding anything to the contrary
contained herein, no party hereto nor any of their Affiliates shall be
required to make any disposition or any agreement to hold separate, any
Subsidiary, asset or business, and the Company shall not agree to do so.
SECTION 6.5. Indemnification and Insurance. (a) NBC and the
Surviving Company, jointly and severally, agree, to the fullest extent
permitted under applicable law or under the Surviving Company's Certificate
of Incorporation or By-laws, indemnify and hold harmless, each present and
former (x) director, (y) officer or (z) solely to the extent a party to an
Indemnification Agreement, employee, of the Company or any of its
Subsidiaries, and their respective estates, heirs, personal representatives
successors and assigns (each, an "Indemnified Party", and collectively, the
"Indemnified Parties") against any costs or expenses (including reasonable
fees and expenses of counsel) as incurred, judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, (collectively, an "Action") (x) arising out
of or pertaining to the Transactions, or (y) otherwise with respect to any
acts or omissions occurring at or prior to the Effective Time, in each case
to the same extent as provided in the Company's amended and restated
Certificates of Incorporation, By-laws or indemnification contracts with any
such Indemnified Parties (to the extent such contracts have been disclosed to
NBC and are identified in Section 6.5 of the Company Disclosure Schedule)
(collectively, the "Indemnification Agreements"), as in effect on the date
hereof, in each case for a period of six years after the date hereof,
provided that any such indemnification of an employee hereunder pursuant to
clause (z) of this Section 6.5(a) shall be limited to that provided in the
Indemnification Agreement to which such employee is a party. In the event of
any such Action, (whether arising before or after the Effective Time) and
subject to the specific terms of any indemnification contract, (i) any
counsel retained by the Indemnified Parties for any period after the
Effective Time shall be reasonably satisfactory to NBC, (ii) after the
Effective Time, NBC shall pay the reasonable fees and expenses of such
counsel, promptly after statements therefor are received, and (iii) the
Surviving Company and NBC will cooperate in the defense of any such Action;
provided, however, that in the event any claim or claims for indemnification
are made within such six year period, all rights to indemnification in
respect of any such claim or claims shall continue until the disposition of
any and all such claims; provided, further, that: (A) promptly after receipt
by an Indemnified Party of notice of any such Action, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Surviving
Company notify the Surviving Company in writing of this claim or the
commencement of that Action (although the failure to provide such notice will
not adversely affect the rights of the Indemnified Party hereunder except to
the extent NBC is prejudiced by such failure); (B) the Surviving Company
shall be entitled to participate in the defense of any such Action, and, to
the extent it wishes, assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party or Indemnified Parties, as the case may
be; (C) the Surviving Company shall not, in connection
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with any one such Action or separate but substantially similar or related
Actions in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for all such Indemnified Parties;
(D) no Indemnified Party may settle any such Action, without the prior
written consent of the Surviving Company; and (E) the Surviving Company shall
not settle any such Action, unless the Indemnified Party that is subject of
such action is fully released as a result thereof.
(b) In addition, the Surviving Company shall maintain in effect for six
years from the Effective Time policies of directors' and officers' liability
insurance containing terms and conditions which are not less advantageous
than any such policies maintained by the Company prior to the Effective Time
(the "D&O Insurance"), with respect to matters occurring up to and including
the Effective Time and having the maximum available coverage under any such
D&O Insurance policies; provided that (i) the Surviving Company following the
Merger shall not be required to spend in excess of 200% of the annual
aggregate premiums currently paid by the Company for such insurance;
provided, further, that if the Surviving Company following the Merger would
be required to spend in excess of such amount per year to obtain insurance
having the maximum available coverage under the D&O Insurance policies, the
Surviving Company will be required to spend up to such amount to maintain or
procure the maximum amount of such (or similar) coverage that is available at
that cost and (ii) such policies may in the sole discretion of the Surviving
Company be one or more "tail" policies for all or any portion of the full six
year period.
(c) Nothing in this Agreement is intended to, shall be construed to or
shall release, waive or impair any rights to directors' and officers'
insurance claims under any policy that is or has been in existence with
respect to the Company or any of its officers, directors or employees, it
being understood and agreed that the indemnification provided for in this
Section 6.5 is not prior to or in substitution for any such claims under such
policies.
(d) This Section 6.5 shall survive the consummation of the
Transactions, is intended to benefit the Indemnified Parties and the officers
and directors of the Company, shall be binding on all successors and assigns
of NBC and the Surviving Company and shall be enforceable by the Indemnified
Parties.
SECTION 6.6. Notification of Certain Matters. The Company shall give
prompt notice to NBC, and NBC shall give prompt notice to the Company, of (i)
the occurrence or nonoccurrence of any event the occurrence or nonoccurrence
of which could reasonably be expected to cause the failure to satisfy the
conditions precedent set forth in Section 7.2 or 7.3, respectively, and (ii)
any notice or other communication from any Third Party or Governmental
Authority alleging that the consent of such Third Party or Governmental
Authority is or may be required in connection with the Transactions;
provided, however, that the delivery of any notice pursuant to this Section
6.6 shall not limit or otherwise affect the remedies available hereunder to
the party giving or receiving such notice unless the failure to give such
notice results in prejudice to the other party.
SECTION 6.7. Further Action. Upon the terms and subject to the
conditions of this Agreement, each of the parties hereto shall use their
respective reasonable best efforts to
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take, or cause to be taken, all actions and to do, or cause to be done, all
other things necessary, proper or advisable to consummate and make effective
as promptly as practicable the Transactions, to obtain in a timely manner all
necessary waivers, consents and approvals and to effect all necessary
registrations and filings, and otherwise to satisfy or cause to be satisfied
all conditions precedent to its obligations under this Agreement.
SECTION 6.8. Public Announcements. NBC and the Company shall consult
with each other before issuing any press release or making any written public
statement with respect to either the Transactions or this Agreement and shall
not issue any such press release or make any such public statement without
the prior consent of the other parties, which shall not be unreasonably
withheld or delayed, except as may be required by applicable law, court
process or by obligations pursuant to any listing agreement with the Nasdaq
National Market or the New York Stock Exchange.
SECTION 6.9. Conveyance Taxes. NBC and the Company shall cooperate
with each other in the preparation, execution and filing of all returns,
questionnaires, applications or other documents regarding any real property
transfer or gains, sales, use, transfer, value added, stock transfer and
stamp taxes, any transfer, recording, registration and other fees and any
similar taxes which become payable in connection with the Transactions that
are required or permitted to be filed on or before the Effective Time.
SECTION 6.10. Employee Plans and Benefits. The Company agrees to
terminate the NBC Internet, Inc. 401(k) Profit Sharing Plan (the "401(k)
Plan") prior to the occurrence of the Transactions, including the Merger, and
distribute the assets of the 401(k) Plan in accordance with the provisions of
the 401(k) Plan, the Code and ERISA.
SECTION 6.11. Disposition of Litigation. Subject to Section 5.4, the
Company will consult with NBC with respect to any Action by any Third Party
to restrain or prohibit or otherwise oppose the Transactions, and will resist
any such effort to restrain or prohibit or otherwise oppose the Transactions.
NBC may participate in (but not control) the defense of any stockholder
litigation against the Company and its directors relating to the Transactions
at NBC's sole cost and expense. In addition, neither the Company nor NBC
will voluntarily cooperate with any Third Party that has sought or may
hereafter seek to restrain or prohibit or otherwise oppose the Transactions,
and NBC and the Company will cooperate to resist any such effort to restrain
or prohibit or otherwise oppose the Transactions.
ARTICLE VII
CONDITIONS TO THE MERGER
SECTION 7.1. Conditions to Obligation of Each of the Parties to Effect
the Transactions. The respective obligations of each party to effect the
Merger shall be subject to the satisfaction at or prior to the Effective Time
of the following conditions:
(a) Stockholder Adoption of Merger Agreement. This Agreement shall
have been adopted and the Merger and the other Transactions shall have been
approved by (i) the holders of a majority of the shares of Class A Common
Stock outstanding as of the record date of
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the Company Stockholders Meeting, voting together as a single class, other
than any such Class A Common Stock with respect to which NBC has the power to
vote or direct the vote in the Company Stockholder Meeting, (ii) the holders
of a majority of the shares of Class B Common Stock outstanding as of the
record date of the Company Stockholders Meeting, voting together as a single
class, and (iii) the holders of a majority of the shares of Class A Common
Stock and Class B Common Stock outstanding as of the record date of the
Company Stockholders Meeting, voting together as a single class
(collectively, the "Requisite Stockholder Approvals").
(b) Antitrust. All waiting periods applicable to the consummation of
the Merger under the HSR Act shall have expired or been terminated, and all
material clearances and approvals required to be obtained in respect of the
Merger prior to the Effective Time under any other similar applicable Law
shall have been obtained; and
(c) Injunction. There shall not be in effect any Law or other action
of any Governmental Authority or court of competent jurisdiction, or any
other legal restraint or prohibition that restrains, enjoins, prohibits or
makes illegal the consummation of the Transactions, provided, however, that
the parties hereto shall use their reasonable commercial efforts to have any
such judgment, decree or order or other legal restraint vacated.
SECTION 7.2. Additional Conditions to Obligations of NBC. The
obligations of NBC and Merger Sub to effect the Merger are also subject to
the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company contained in this Agreement (i) that are qualified as to
Company Material Adverse Effect shall be true and correct and (ii) that are
not so qualified shall be true and correct, as of the date of this Agreement
and as of the Effective Time, with the same force and effect as if made on
and as of the Effective Time, except for those representations and warranties
which address matters only as of a particular date (which shall have been
true and correct as of such date), except where the failure of such
representations and warranties (other than the representation contained in
Section 3.3, 3.14, 3.21, 3.22, 3.23 and 3.24, which shall be true and correct
in all material respects) to be true and correct would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse
Effect; and NBC shall have received a certificate of the Company to such
effect signed on behalf of the Company by its Chief Executive Officer or
Chief Financial Officer; and
(b) Agreements and Covenants. The Company shall have performed or
complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it on or prior to the
Effective Time, and NBC shall have received a certificate to such effect
signed on behalf of the Company by its Chief Executive Officer or Chief
Financial Officer.
SECTION 7.3. Additional Conditions to Obligation of the Company. The
obligation of the Company to effect the Merger is also subject to the
following conditions:
(a) Representations and Warranties. The representations and warranties
of NBC contained in this Agreement (i) that are qualified as to Company
Material Adverse Effect shall be true and correct and (ii) that are not so
qualified shall be true and correct, as of the date
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of this Agreement and as of the Effective Time, with the same force and
effect as if made on and as of the Effective Time, except for those
representations and warranties which address matters only as of a particular
date (which shall have been true and correct as of such date), except where
the failure of such representations and warranties to be true and correct
would not, individually or in the aggregate, reasonably be expected to have a
NBC Material Adverse Effect; and the Company shall have received certificates
to such effect signed on behalf of NBC by an authorized officer of NBC; and
(b) Agreements and Covenants. NBC shall have performed or complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by them on or prior to the
Effective Time, and the Company shall have received certificates to such
effect signed on behalf of NBC by an authorized officer of NBC.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1. Termination. This Agreement may be terminated and the
Merger may be abandoned, in each case, at any time prior to the Effective
Time, notwithstanding adoption thereof by the stockholders of the Company:
(a) by mutual written consent of NBC and the Company, in each case duly
authorized by the Boards of Directors or a duly authorized committee thereof;
(b) by either NBC or the Company if the Merger has not been consummated
by September 30, 2001; provided that if on such date, all conditions in
Article VII shall have been satisfied other than the failure to obtain
applicable governmental or regulatory consents or approval, then such date
shall be extended for an additional sixty (60) days; and provided, further,
that the right to terminate this Agreement under this Section 8.1(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 of the
Merger to be consummated on or prior to such date;
(c) by either NBC or the Company if a court of competent jurisdiction
or Governmental Authority shall have issued a nonappealable final order,
decree or ruling or taken any other nonappealable final action having the
effect of permanently restraining, enjoining or otherwise prohibiting the
Transactions;
(d) by either NBC or the Company if the Requisite Stockholder Approvals
shall not have been obtained at the Company Stockholders Meeting;
(e) by NBC, if, whether or not permitted to do so by this Agreement,
the Board of Directors of the Company, the Class A Directors or the Company
shall (x) (i) withdraw, modify or change its approval or recommendation of
this Agreement or the Transactions in a manner adverse to NBC, (ii) approve
or recommend to the stockholders of the Company an Alternative Transaction
(other than by NBC or its Affiliates) or (iii) approve or recommend that the
stockholders of the Company tender their shares in any tender or exchange
offer that is an Alternative Transaction (other than by NBC and other
Affiliates of NBC) or not recommend
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rejection thereof; (y) take any position or make any disclosures to the
Company's stockholders permitted pursuant to Section 5.4(f) which has the
effect of any of the foregoing; or (z) in the case of the Class A Directors,
the Board of Directors or any duly authorized committee thereof, resolve to
do any of the foregoing;
(f) by the Company, in accordance with Section 5.4(d) prior to the
Stockholders Meeting, provided that the Company has complied with the
provisions of Section 5.4 in connection with the receipt of the applicable
Superior Proposal; and provided further that any such termination will not be
effective unless the Termination Fee pursuant to Section 8.3 shall have been
paid concurrently with or prior to such termination; or
(g) (i) by the Company, if NBC breaches any of its representations,
warranties, covenants or agreements contained in this Agreement the result of
which breach is reasonably likely to materially adversely affect NBC's
ability to consummate the Transactions and, with respect to any such breach
that is reasonably capable of being remedied, the breach is not remedied
within 30 days after the Company has furnished NBC with written notice of
such breach or (ii) by NBC, if the Company breaches any of its
representations, warranties, covenants or agreements contained in this
Agreement which is reasonably likely to result in a failure of the conditions
in Section 7.2 to be satisfied and, with respect to any such breach that is
reasonably capable of being remedied, the breach is not remedied within 30
days after NBC has furnished the Company with written notice of such breach.
SECTION 8.2. Effect of Termination. In the event of the termination
of this Agreement pursuant to Section 8.1, this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto
or any of their respective Affiliates, directors, officers or stockholders,
except that (i) the Company or NBC may have liability as set forth in Section
8.3, and (ii) nothing herein shall relieve the Company or NBC from liability
for any willful breach of this Agreement.
SECTION 8.3. Expenses; Termination Fee. (a) In the event that this
Agreement is terminated by NBC pursuant to Section 8.1(e) or by the Company
pursuant to Section 8.1(f), the Company shall pay to NBC by wire transfer of
immediately available funds to an account designated by NBC an amount equal
to $3 million (the "Termination Fee"). Such payment shall be made (i) prior
to or concurrently with any termination pursuant to Section 8.1(f) and (ii)
on the next Business Day following termination pursuant to Section 8.1(e).
(b) If all of the following events have occurred:
(i) an Acquisition Proposal is publicly disclosed, publicly proposed
or otherwise publicly communicated at any time on or after the date of
this Agreement and has not been irrevocably and unconditionally publicly
withdrawn prior to the termination of this Agreement and thereafter this
Agreement is terminated pursuant to Section 8.1(d) due to the failure to
obtain the approval described in clause (i) of the definition of
"Requisite Stockholder Approvals"; and
(ii) thereafter, within nine (9) months of the date of such termination,
the Company, (A) enters into a definitive agreement with respect to any
Alternative
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Transaction (and such Alternative Transaction or any amended
or modified version thereof is subsequently consummated) or (B) the
Company otherwise consummates any Alternative Transaction;
then, on the day that such Alternative Transaction is consummated the Company
shall pay to NBC by wire transfer of immediately available funds to an
account designated by NBC an amount equal to the Termination Fee. For
purposes of this Section 8.3(b) all references to "15%" in the definition of
"Alternative Transaction" shall be deemed references to "50%."
(c) Except as otherwise specifically provided herein, each party shall
bear its own expenses in connection with this Agreement and the Transactions
whether or not the Transactions are consummated.
SECTION 8.4. Amendment. This Agreement may be amended by the parties
hereto at any time prior to the Effective Time; provided, however, that,
after adoption of this Agreement by the stockholders of the Company, no
amendment may be made which by law requires further approval by such
stockholders without such further approval. This Agreement may not be
amended except by an instrument in writing signed by each of the parties
hereto. Notwithstanding the foregoing, NBC shall have the right, in its sole
discretion and without the consent of any other Person, to waive performance
or amend the provisions of (i) Section 2.13(a) hereof with respect to those
transactions taking place solely between NBC and Investments Sub and (ii)
Section 2.14 hereof with respect to any and all transactions taking place
between NBC and the Surviving Company after the Effective Time.
SECTION 8.5. Waiver. At any time prior to the Effective Time, any
party hereto may with respect to any other party hereto (a) extend the time
for the performance of any of the obligations or other acts of such party,
(b) waive any inaccuracies in the representations and warranties of such
party contained herein or in any document delivered pursuant hereto and (c)
subject to the proviso contained in Section 8.4, waive compliance of such
party with any of the covenants, agreements or conditions contained herein.
Any such extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby. No such
extension or waiver shall be deemed or construed as a continuing extension or
waiver on any occasion other than the one on which such extension or waiver
was granted or as an extension or waiver with respect to any provision of
this Agreement not expressly identified in such extension or waiver on the
same or any other occasion.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. Effectiveness of Representations, Warranties and
Agreements. The representations, warranties, covenants and agreements in
this Agreement and in any certificate delivered at the Closing pursuant
hereto shall terminate at the Effective Time, except that the covenants and
agreements set forth in Article II, Section 6.5, Article VIII and Article IX
and any other covenant or agreement in this Agreement which contemplates
performance after the Effective Time shall survive the Effective Time.
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SECTION 9.2. 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
to the parties at the following addresses or sent by electronic transmission,
with confirmation received, to the telecopy numbers specified below (or at
such other address, Person's attention or telecopy number for a party as
shall be specified by like notice):
(a) If to NBC or Merger Sub:
National Broadcasting Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: 212.977.7165
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: 212.664.5561
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇.▇▇▇.▇▇▇▇
(b) If to the Company:
NBC Internet, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopy No.: 415.375.6840
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: 415.947.2099
SECTION 9.3. Headings; Construction. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement (a) words
denoting the singular include the plural and vice versa, (b) "it" or "its" or
words denoting any gender include all genders, (c) the
-41-
word "including" shall mean "including without limitation," whether or not
expressed, (d) any reference to a statute shall mean the statute and any
regulations thereunder in force as of the date of this Agreement or the
Effective Time, as applicable, unless otherwise expressly provided, (e) any
reference herein to a Section, Article, Paragraph, Schedule or Exhibit refers
to a Section, Article or Paragraph of or a Schedule or Exhibit to this
Agreement, unless otherwise stated, (f) when calculating the period of time
within or following which any act is to be done or steps taken, the date
which is the reference day in calculating such period shall be excluded and
if the last day of such period is not a Business Day, then the period shall
end on the next day which is a Business Day, and (g) any reference to any of
the Company and any of its Subsidiaries shall include such company's
predecessor or predecessors, as the case may be.
SECTION 9.4. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions is not affected in any manner adverse to any
party. Upon a determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner to the end that
Transactions are fulfilled to the extent possible.
SECTION 9.5. Entire Agreement. This Agreement and the Confidentiality
Letter constitute the entire agreement and supersede all prior agreements and
undertakings both written and oral, among the parties, or any of them, with
respect to the subject matters hereof and thereof, except as otherwise
expressly provided herein or therein.
SECTION 9.6. Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that (a) all or any of the rights of
Merger Sub hereunder may be assigned to any direct or indirect wholly-owned
Subsidiary of NBC; provided, however, that no such assignment shall relieve
Merger Sub of its obligations hereunder and (b) all or any of the rights and
obligations of the Surviving Company can be assigned pursuant to Section 2.14
hereof as part of the Distribution and Assumption.
SECTION 9.7. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other Person any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement, including, without limitation, by way of
subrogation, other than pursuant to Section 6.5 (which is intended to be for
the benefit of the Indemnified Parties and may be enforced by such
Indemnified Parties).
SECTION 9.8. Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any party hereto in the exercise of any
right hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty, covenant or
agreement herein, nor shall any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights
and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
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SECTION 9.9. Governing Law; Jurisdiction; Service of Process. (a)
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Delaware applicable to contracts executed and
fully performed within the State of Delaware.
(b) Each of the parties hereto submits to the non-exclusive
jurisdiction of the state and federal courts of the United States located in
Delaware with respect to any claim or cause of action arising out of this
Agreement or the Transactions. Each of the parties agrees not contest such
venue as an inappropriate venue or forum or assert a claim of forum non
conveniens as a basis to move such claim or cause of action to another venue
or forum.
(c) Any and all service of process and any other notice in any action,
suit or proceeding arising out of this Agreement shall be effective against
any party hereto if given personally or by registered or certified mail,
return receipt requested or by any other means of mail that requires a signed
receipt, postage prepaid, mailed to such party as provided in Section 9.2, or
by personal service with a copy of such process mailed to such party being
served by first class mail, or registered or certified mail, return receipt
requested, postage prepaid. Nothing contained herein shall be deemed to limit
the right of any party to serve process in any other manner permitted by law.
SECTION 9.10. Counterparts. This Agreement may be executed in two or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
SECTION 9.11. Waiver of Jury Trial. EACH OF NBC, MERGER SUB AND THE
COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS.
SECTION 9.12. Obligations of Merger Sub. Whenever this Agreement
requires Merger Sub or, after the Effective Time, the Company or the
Surviving Company to take action, such requirement shall be deemed to include
an undertaking on the part of NBC to cause such person to take such action.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
NBC INTERNET, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
RAINWATER ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Solely for purposes of Section 2.13 hereof:
GE INVESTMENTS SUB
By: /s/ ▇▇▇▇▇▇ ▇. Healing
-----------------------------
Name: ▇▇▇▇▇▇ ▇. Healing
Title: Vice President
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