Exhibit 10.5
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XENON 2, INC.*
GOVERNANCE AND INVESTOR RIGHTS AGREEMENT
between
XENON 2, INC.
and
NATIONAL BROADCASTING COMPANY, INC.
---------------------------
Dated as of _________ __, 1999
* Changed its name to NBC Internet, Inc. on July __, 1999
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GOVERNANCE AND INVESTOR RIGHTS AGREEMENT
THIS GOVERNANCE AND INVESTOR RIGHTS AGREEMENT (this "Agreement"), dated
as of _______________ __, 1999, is made and entered into by and between Xenon 2,
Inc., a Delaware corporation (the "Company"), and National Broadcasting Company,
Inc., a Delaware corporation ("NBC").
W I T N E S S E T H:
WHEREAS, the Company and NBC have entered into that certain Agreement
and Plan of Contribution, Investment and Merger (the "Merger Agreement"), dated
May 9, 1999, and into certain other agreements referred to in, or transactions
contemplated by, the Merger Agreement (the "Transactions");
WHEREAS, the Company and NBC desire, in connection with the
Transactions, to make certain covenants and agreements with one another pursuant
to this Agreement;
WHEREAS, it is a condition to the consummation of the Transactions that
the parties enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall mean (i) with respect to the Company, the Company's
Subsidiaries, (ii) with respect to NBC, except as provided in Section 2.2 below,
NBC's Subsidiaries and the holder of the Company Convertible Note and (iii) with
respect to NBC Parent, NBC Parent's Subsidiaries other than NBC and its
Affiliates; PROVIDED, HOWEVER, that for purposes of this Agreement, the Company
and its Affiliates on the one hand, and either NBC and its Affiliates or NBC
Parent and its Affiliates on the other hand, shall not be deemed to be
"Affiliates" of one another.
"Beneficially Own" or "Beneficial Ownership" shall have the meaning set
forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange
Act. Without limiting the foregoing, the holder of the Company Convertible Note
will be deemed to Beneficially Own the shares of Common Stock issuable upon
conversion thereof; PROVIDED that for all purposes under this Agreement, NBC and
its Affiliates shall not be deemed to beneficially own any Voting Securities
beneficially owned by NBC Parent or
its Affiliates and NBC Parent and its Affiliates shall not be deemed to
beneficially own any Voting Securities beneficially owned by NBC and its
Affiliates, in each such case unless and until NBC Parent or its Affiliates
shall have become Restricted Parties.
"Board of Directors" shall mean the Board of Directors of the Company
as from time to time hereafter constituted.
"Certificate of Incorporation" shall mean the Amended and Restated
Certificate of Incorporation of the Company as in effect on the date hereof,
substantially in the form of Exhibit A hereto, and as hereafter from time to
time amended, modified, supplemented or restated in accordance with the terms
hereof and pursuant to applicable law.
"Change in Control of the Company" shall mean any of the following: (i)
a merger, consolidation or other business combination or transaction to which
the Company is a party if the stockholders of the Company immediately prior to
the effective date of such merger, consolidation or other business combination
or transaction, as a result of such merger, consolidation or other business
combination or transaction, do not have Beneficial Ownership of Voting
Securities representing 50% or more of the Total Current Voting Power of the
surviving corporation (or its parent) following such merger, consolidation or
other business combination or transaction; (ii) any Person or 13D Group, shall
have Beneficial Ownership of 20% or more of the outstanding shares of Class A
Common Stock at a time when the holders of the Class B Common Stock do not elect
a majority of the Board of Directors; (iii) a sale of all or substantially all
the consolidated assets of the Company to any Person or Persons (other than a
Restricted Party or any 13D Group to which any Restricted Party is a member); or
(iv) a liquidation or dissolution of the Company.
"Class A Directors" shall have the meaning set forth in the Company's
Certificate of Incorporation.
"Class A Common Stock" shall have the meaning set forth in the
Company's Certificate of Incorporation.
"Class B Directors" shall have the meaning set forth in the Company's
Certificate of Incorporation.
"Class B Common Stock" shall have the meaning set forth in the
Company's Certificate of Incorporation.
"Commission" shall mean the Securities and Exchange Commission and any
successor commission or agency having similar powers.
"Company Competitor" shall have the meaning ascribed to the term "Newco
Competitor" in that certain License Agreement (as defined in the Merger
Agreement).
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"Common Stock" shall mean the Company's Class A Common Stock and the
Class B Common Stock.
"Eligible Purchaser" shall mean any Person (other than the Company or
any Person that is or becomes a Restricted Party) that is not a Company
Competitor.
"Effective Time" shall have the meaning set forth in the Merger
Agreement.
"Exchange Act" shall mean, as of any date, the Securities Exchange Act
of 1934, as amended, or any similar federal statute then in effect and
superseding such act, and any reference to a particular section thereof shall
include a reference to the comparable section, if any, of such similar federal
statute, and the rules and regulations thereunder.
"NBC Parent" shall mean the ultimate parent corporation of NBC (if
any), which as of today is General Electric Company, a New York corporation.
"NBC Tender Offer" shall mean a bona fide public tender offer subject
to the provisions of Regulation 14d under the Exchange Act by a Restricted Party
(or any 13D Group that includes a Restricted Party) to purchase or exchange for
cash or other consideration any Voting Securities.
"Newco Convertible Note" shall have the meaning set forth in the Merger
Agreement.
"Note Conversion Time" shall mean any time following the Effective Time
at which there shall be any conversion into shares of Class B Common Stock
pursuant to the Newco Convertible Note, which shares of Class B Common Stock are
Beneficially Owned by a Restricted Party.
"Person" shall mean an individual or a corporation, association,
partnership, limited liability company, joint venture, organization, business,
trust or any other entity or organization, including a government or any
subdivision or agency thereof.
"Restricted Parties" shall mean (i) NBC, (ii) NBC's Affiliates and
(iii) from and after the time NBC Parent or any of its Affiliates shall convert
any shares of Class A Common Stock into shares of Class B Common Stock pursuant
to Section 2.2 of this Agreement, NBC Parent and its Affiliates.
"Securities Act" shall mean, as of any date, the Securities Act of
1933, as amended, or any similar federal statute then in effect and superseding
such act, and any reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar federal
statute, and the rules and regulations thereunder.
"Shares" shall mean any shares of Voting Securities that are
Beneficially Owned by any Restricted Party or any 13D Group of which any
Restricted Party is a member.
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"Standstill Limit" shall mean the percentage of the Total Current
Voting Power of the Company that would be held by NBC and its Affiliates on June
11, 1999 if the transactions contemplated by the Merger Agreement had been
consummated on such date, assuming that the Company Convertible Note had been
converted at such time into shares of Class B Common Stock.
"Standstill Period" shall mean the period beginning on the Closing Date
(as defined in the Merger Agreement) and ending on the occurrence of a
Standstill Termination Event; PROVIDED that the Standstill Period shall
recommence immediately upon the occurrence of a Standstill Reinstatement Event .
"Standstill Reinstatement Event" shall mean that the Standstill Period
has terminated pursuant to clause (iii) of the definition of "Standstill
Termination Event" and such Third Party Tender Offer is withdrawn or terminated
(without having been consummated). Notwithstanding the foregoing, a Standstill
Reinstatement Event will not occur if prior to the occurrence of the event
specified in the preceding sentence that would otherwise result in a Standstill
Reinstatement Event, another Standstill Termination Event occurs for which there
has not been a related Standstill Reinstatement Event.
"Standstill Revised Limit" shall mean the percentage of the Total
Current Voting Power represented by all shares of Voting Securities Beneficially
Owned by the Restricted Parties as of the occurrence of a Standstill
Reinstatement Event.
"Standstill Termination Event" shall mean the earliest to occur of (i)
the third anniversary of the date of this Agreement, (ii) the first anniversary
of the date on which the Restricted Parties or any 13D Group of which they are a
member no longer Beneficially Own any shares of Class B Common Stock (including
as a result of their automatic conversion to Class A Common Stock in accordance
with the Company's Certificate of Incorporation), (iii) a Third Party Tender
Offer, (iv) the date the Company enters into an agreement relating to a
transaction that if consummated will result in a Change in Control of the
Company or (v) any Change in Control of the Company occurs; PROVIDED, that the
Standstill Period will be immediately reinstated upon the occurrence of a
Standstill Reinstatement Event; PROVIDED FURTHER that, upon a Standstill
Reinstatement Event, if the Standstill Revised Limit is greater than the
Standstill Limit, then the Standstill Revised Limit and not the Standstill Limit
shall thereafter be deemed the Standstill Limit for all purposes hereunder.
"Subsidiary" shall mean, as to any Person, another Person of which
outstanding securities having the power to elect a majority of the members of
the board of directors (or comparable body or authority performing similar
functions) of such other Person are at the time owned, directly or indirectly
through one or more intermediaries, or both, by such first Person.
"Takeover Transaction" means (i) the direct or indirect acquisition or
purchase of 50% or more of the assets (based on the fair market value thereof)
of the Company and
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its Affiliates, taken as a whole, or of 50% or more of any class of equity
securities of the Company or any of its Affiliates or any tender offer or
exchange offer (including by the Company or its Affiliates) that if consummated
would result in any person Beneficially Owning 50% or more of any class of
equity securities of the Company or any of its Affiliates, (ii) a sale of all or
substantially all of the assets of the Company and its Affiliates or (iii) a
merger or consolidation of the Company as a result of which the stockholders of
the Company immediately prior to such transaction would not Beneficially Own
immediately after such transaction 50% or more of the resulting or surviving
entity (or the parent thereof).
"Third Party Tender Offer" shall mean a bona fide public tender offer
subject to the provisions of Regulation 14D under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), when first commenced within the meaning
of Rule 14d-2 of the rules and regulations under the Exchange Act by a Person or
13D Group (which is not made by and does not include any of the Company or any
Affiliate or a Restricted Party or any 13D Group that includes the Company or an
Affiliate or a Restricted Party) to purchase or exchange for cash or other
consideration any Voting Securities and which consists of an offer to acquire
20% or more of the then Total Current Voting Power of the Company.
"Total Current Voting Power" shall mean, with respect to any
corporation, the total number of votes which may be cast in the election of
members of the Board of Directors of such corporation if all securities entitled
to vote in the election of such directors are present and voted; PROVIDED that,
for purposes of this definition, the Class A Common Stock and the Class B Common
Stock shall be considered as a single class.
"Voting Securities" shall mean shares of Common Stock and any other
securities of the Company entitled to vote generally in the election of members
of the Board of Directors or any other securities (including, without
limitation, rights and options) convertible into, exchangeable for or
exercisable for, any of the foregoing (whether or not presently convertible,
exchangeable or exercisable).
"13D Group" shall mean any group of persons formed for the purpose of
acquiring, holding, voting or disposing of Voting Securities of a corporation
which would be required under Section 13(d) of the Exchange Act, and the rules
and regulations promulgated thereunder, to file a statement on Schedule 13D
pursuant to Rule 13d-1(a) or Schedule 13G pursuant to rule 13d-1(c) with the
Commission as a "person" within the meaning of Section 13(d)(3) of the Exchange
Act if such group Beneficially Owned Voting Securities representing more than 5%
of any class of Voting Securities then outstanding; PROVIDED, HOWEVER, that for
all purposes under this Agreement, NBC and its Affiliates shall not be deemed to
have formed, joined, participated in or be a member of any 13D Group which
includes NBC Parent and its Affiliates unless and until NBC Parent or its
Affiliates shall have become Restricted Parties.
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ARTICLE II
STANDSTILL PROVISIONS
Section 2.1 RESTRICTIONS ON NBC'S ACTIVITIES REGARDING THE COMPANY AND
ITS STOCK. NBC agrees that during the Standstill Period, without first obtaining
the prior approval of the Class A Directors of the Company, specifically
expressed in a resolution adopted by a majority of the Class A Directors of the
Company, NBC will not, and NBC will cause each Restricted Party, each 13D Group
of which a Restricted Party is a member, and shall use its best efforts to cause
each of their respective agents, representatives, employees, directors, and
officers (in such capacity) not to, directly or indirectly (nor to solicit,
initiate, assist or encourage NBC Parent or its Affiliates to, directly or
indirectly):
(a) acquire, offer or propose to acquire, or agree to acquire, directly
or indirectly, whether by purchase, tender or exchange offer, through the
acquisition of control of another Person, by joining a partnership, limited
partnership, syndicate or other "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) or otherwise, any Voting Securities, if after giving effect
to such acquisition the Total Current Voting Power represented by the Voting
Securities Beneficially Owned by the Restricted Parties exceeds the Standstill
Limit; PROVIDED, HOWEVER, that if at any time during the Standstill Period, (x)
any Person other than any Restricted Party or any 13D Group of which a
Restricted Party is a member has made any written proposal or offer relating to
a Takeover Transaction or Change in Control of the Company which has not been
rejected within 10 business days by the Board of Directors, (y) the Board of
Directors has determined to pursue a Takeover Transaction or Change in Control
of the Company and the Board of Directors has not resolved to stop pursuing such
Takeover Transaction or Change in Control of the Company, or (z) the Board of
Directors or the Company has engaged in any discussions or negotiations with, or
provided any information to, any Person other than any Restricted Party, or any
13D Group of which any Restricted Party is a member, with respect to a Takeover
Transaction or Change in Control of the Company and the Board of Directors has
not resolved to terminate all such discussions, negotiations and provision of
information, then, for so long as such condition continues to apply, the
limitation on the actions described above in this clause (a) shall not be
applicable to any Restricted Party;
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" (as such term is used in the proxy rules of the Commission as in
effect on the date hereof) of proxies or consents in connection with an
amendment to the Certificate of Incorporation that requires a separate class
vote of the Class A Common Stock pursuant to the Certificate of Incorporation or
the election of Class A Directors, in each case at a time when any Restricted
Party is the Beneficial Owner of Class B Common Stock; PROVIDED, HOWEVER, that
the limitation contained in this clause (b) shall not apply to any Takeover
Transaction to be voted on by the Company's shareholders that is not instituted
or proposed by any Restricted Party or any 13D Group of which any Restricted
Party is a member; or
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(c) act, whether alone or in concert with others, to seek to propose to
the holders of the Class A Common Stock any merger, business combination or
similar transaction with any Restricted Party or any 13D Group of which any
Restricted Party is a member; PROVIDED, HOWEVER, that if at any time during the
Standstill Period, (x) any Person other than any Restricted Party or any 13D
Group of which a Restricted Party is a member has made any written proposal or
offer relating to a Takeover Transaction or Change in Control of the Company
which has not been rejected within 10 business days by the Board of Directors,
(y) the Board of Directors has determined to pursue a Takeover Transaction or
Change in Control of the Company and the Board of Directors has not resolved to
stop pursuing such Takeover Transaction or Change in Control of the Company, or
(z) the Board of Directors or the Company has engaged in any discussions or
negotiations with, or provided any information to, any Person other than any
Restricted Party, or any 13D Group of which any Restricted Party is a member,
with respect to a Takeover Transaction or Change in Control of the Company and
the Board of Directors has not resolved to terminate all such discussions,
negotiations and provision of information, then, for so long as such condition
continues to apply, the limitation on the actions described above in this clause
(c) shall not be applicable to any Restricted Party;
Section 2.2 PURCHASES BY NBC PARENT. So long as the Beneficial
Ownership of the Restricted Parties would not thereafter exceed the Standstill
Limit, if such purchaser or any of its Subsidiaries shall purchase any of the
Class A Common Stock, the Company shall permit NBC Parent and its Affiliates,
upon request, to convert any or all of their shares of Class A Common Stock into
shares of Class B Common Stock, subject to such purchaser's agreeing to be bound
by the terms and conditions of this Agreement to the same extent and as if it
were NBC.
Section 2.3 DISAPPLICATION OF STANDSTILL LIMIT.
Notwithstanding anything in this Agreement to the contrary,
(a) this Article II shall not prohibit or restrict any of the
following: (i) any action specifically permitted or required to be taken by any
Restricted Party pursuant to the Certificate of Incorporation, (ii) actions
taken by any Class B Director or, after there is no longer any Class B Director,
any member of the Board of Directors or any officer of the Company, in each case
who was nominated or designated by any Restricted Party acting in such capacity
and (iii) the exercise by the Restricted Parties of their voting rights with
respect to any shares of Voting Securities they Beneficially Own.
(b) no Restricted Party shall be deemed to have violated any provision
of this Article II by virtue of any increase in the aggregate percentage of the
Total Current Voting Power of the Company represented by Shares if such increase
is the result of a recapitalization of the Company, a repurchase of securities
by the Company or other actions taken by the Company or any of its Affiliates
that have the effect of reducing the Total Current Voting Power.
(c) nothing in this Agreement shall prohibit (i) the acquisition or
holding of securities or rights in the ordinary course of business by any
employee benefit plan whose
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trustees, investment managers or similar advisors are not Restricted Parties,
(ii) the consummation of any transaction expressly provided for in the Merger
Agreement or the Implementing Agreements, (iii) directors, officers and
employees of the Restricted Parties from communicating with directors, officers
and employees of the Company or its Affiliates on matters related to or governed
by the Merger Agreement, the Implementing Agreements or other operational
matters, (iv) the Restricted Parties from communicating with any member of the
Board of Directors or any officer of the Company who was nominated or designated
by any Restricted Party or (v) the Restricted Parties from communicating with
the other members of the Board of Directors, the Chairman of the Board of
Directors or the Chief Executive Officer of the Company, so long as such
communication is conveyed in confidence and does not require public disclosure
by the Restricted Parties or, in the reasonable belief of the Restricted Party
making such communication, by the Company.
ARTICLE III
TRANSFERS BY NBC
Section 3.1 RESTRICTIONS ON TRANSFER. Unless NBC and its Affiliates
Beneficially Own in the aggregate less than 5% of the Total Current Voting Power
of the Company, or until the Restricted Parties Beneficially Own in the
aggregate at least 90% of the Total Current Voting Power, NBC agrees that from
the date of this Agreement until the earlier of (x) the fifth anniversary of the
date of this Agreement, or (y) the occurrence of a Standstill Termination Event
specified in clause (iv) or (v) of the definition thereof, without first
obtaining the prior approval of the Class A Directors of the Company,
specifically expressed in a resolution adopted by a majority of the Class A
Directors of the Company, NBC will not, and NBC will cause each Person that is
or becomes a Restricted Party and each 13D Group of which any Restricted Party
is a member not to, directly or indirectly, sell, transfer, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise dispose of (or
make any exchange, gift, assignment or pledge of) (collectively, a "transfer")
any of its Shares, except as and to the extent permitted under the Securities
Act and other applicable securities laws to: (i) the Company, (ii) another
Person that is or becomes a Restricted Party so long as such transferee shall
execute an agreement in form and substance reasonably satisfactory to the
Company providing that such transferee shall be bound by and shall fully comply
with the terms of this Agreement in the same manner and to the same extent as
applicable to NBC, and agrees to transfer such Shares to another Restricted
Party if it ceases to be a Restricted Party, (iii) pursuant to a Third Party
Tender Offer, (iv) pursuant to a merger, consolidation or reorganization to
which the Company is a party, (v) in a BONA FIDE public distribution or bona
fide underwritten public offering, (vi) pursuant to Rule 144 of the Securities
Act to any one or more Persons that, to the best knowledge of the Restricted
Parties after due and careful inquiry, are not Company Competitors or (vii) to
an Eligible Purchaser in a private sale or pursuant to Rule 144A of the
Securities Act; PROVIDED, HOWEVER, that, in the case of any transfer pursuant to
clause (vii), such transfer does not result in, to the best knowledge of the
Restricted Parties after due and careful inquiry, any Person other than an
Eligible Purchaser acquiring, after giving effect to such transfer,
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Beneficial Ownership, individually or in the aggregate with any of its
Affiliates or any 13D Group of which the Eligible Purchaser or any of its
Affiliates is a member, 19.9% or more of the Total Current Voting Power of the
Company. For as long as the transfer restrictions in the immediately preceding
sentence remain in effect, of the 29,833,788 shares of Common Stock Beneficially
Owned by the Restricted Parties on the date hereof (the "Restricted Shares"),
the Restricted Parties will not transfer pursuant to clauses (v), (vi) and (vii)
more than an aggregate of (1) 2,500,000 Restricted Shares on or prior to the one
year anniversary of the date hereof, (2) 5,000,000 Restricted Shares on or prior
to the two year anniversary of the date hereof, or (3) 7,200,000 Restricted
Shares on or prior to the three year anniversary of the date hereof (it being
understood that the restrictions contained in this sentence will not apply to
any shares of Common Stock first acquired by the Restricted Parties after the
date hereof). Any transfer or attempted transfer which is not in compliance with
this Agreement shall be null and void AB INITIO and neither the Company nor any
transfer agent of such securities shall give any effect thereto in its stock
records.
Section 3.2 ENDORSEMENT OF CERTIFICATES. Upon the execution of this
Agreement, in addition to any other legend that is required pursuant to the
Merger Agreement and the transactions contemplated thereby or that the Company
may deem advisable under the Securities Act and certain state securities laws,
all certificates representing Shares shall be endorsed at all times as follows:
"SUCH SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE
PROVISIONS OF THE GOVERNANCE AND INVESTOR RIGHTS
AGREEMENT DATED AS OF __________ __, 1999 BETWEEN
NATIONAL BROADCASTING COMPANY, INC. AND THE COMPANY,
COPIES OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY."
Section 3.3 STOCK PURCHASE RIGHTS.
(a) NEW ISSUANCES. If at any time after the date hereof the Company
shall issue any New Securities (as defined below in this subsection (a)), at the
time of any such issuance, for so long as there shall be outstanding shares of
Class B Common Stock of the Company, NBC shall have the option (the "Option") to
purchase that number of New Securities (the "Option Securities") in an amount
sufficient for NBC and its Affiliates to maintain in the aggregate their then
Proportionate Percentage (as defined below in this subsection (a)) at that time.
The Option may be exercised by NBC or, at NBC's discretion, may be transferred
to or exercised by any Person that is or becomes a Restricted Party, so long as
such transferee or such Person exercising shall execute an agreement in form and
substance reasonably satisfactory to the Company providing that such transferee
or such Person exercising shall be bound by and shall fully comply with the
terms of this Agreement in the same manner and to the same extent as applicable
to NBC, and agrees to transfer the rights hereunder to another Restricted Party
if it ceases to be a Restricted Party, but the Option may not be transferred to
or exercised by any other Person. If the New Securities are additional shares of
Class A Common Stock, then the Option Securities shall be additional shares of
Class B Common Stock. The purchase
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price for the Option Securities shall be paid in immediately available United
States funds and shall be equal to (i) the per share price at which the Company
is selling the New Securities, if the consideration for such sale is cash, or
(ii) the Fair Market Value of the New Securities, if the consideration for such
sale is not cash.
For purposes of this Agreement, the terms set forth below shall have
the following meanings:
"Fair Market Value" shall mean, with respect to the Class A Common
Stock or other New Securities, the following: where there exists a public market
for the Class A Common Stock or other New Securities, the Fair Market Value
shall be (A) the closing price for a share of Class A Common Stock or other New
Securities, as the case may be, for the last market trading day prior to the
time of the determination (or, if no closing price was reported on that date, on
the last trading date on which a closing price was reported) on the stock
exchange determined by the Board of Directors to be the primary market for the
Class A Common Stock or other New Securities, as the case may be, or the Nasdaq
National Market, whichever is applicable, or (B) if the Class A Common Stock or
other New Securities, as the case may be, is not traded on any such exchange or
national market system, the average of the closing bid and asked prices of a
share of Class A Common Stock or other New Securities, as the case may be, on
the Nasdaq Small Cap Market for the day prior to the time of the issuance (or,
if no such prices were reported on that date, on the last date on which such
prices were reported), in each case, as reported in THE WALL STREET JOURNAL or
such other source as the Board of Directors deems reliable. In the absence of an
established market of the type described in the preceding sentence for the Class
A Common Stock or in the absence of an established market of similar type for
any other New Securities, the Fair Market Value thereof shall be determined in
good faith by the Board of Directors. For purposes of this Section 3.3, the Fair
Market Value of Class B Common Stock shall be equivalent to the Fair Market
Value of Class A Common Stock.
"New Securities" shall mean any authorized but unissued shares and any
treasury shares of Common Stock, any new class of common stock or preferred
stock (if and only if such preferred stock either votes generally with the
common stock for the election of directors or does not have dividends that are
limited to a specific dividend vote) and all rights, options, or warrants to
purchase Common Stock or any new class of common stock or such preferred stock
and securities of any type whatsoever that are, or may become, exercisable for
or convertible into Common Stock or any new class of common stock or such
preferred stock; PROVIDED, HOWEVER, that the term "New Securities" does not
include: (i) the grant or issue now or hereafter of any options to purchase
shares of Common Stock or securities convertible into shares of Common Stock
pursuant to any employee option plan or other employee benefit but does include
any shares of Common Stock or securities convertible into shares of Common Stock
issued upon exercise of any such options; (ii) securities outstanding as of the
date hereof; or (iii) shares of Common Stock issued pursuant to any
reclassification, stock split or stock dividend.
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"Proportionate Percentage" shall mean a percentage equal to a fraction,
the numerator of which is the aggregate number of shares of Common Stock
Beneficially Owned by NBC and its Affiliates and the denominator of which is the
total number of outstanding shares of Common Stock of the Company immediately
prior to the issuance of New Securities.
(b) FRACTIONAL SHARES. No fractional shares of Option Securities shall
be issued upon exercise of the Option. In lieu of fractional shares, the Company
shall round the number of Option Securities to be purchased to the nearest whole
number and adjust the purchase price for the Option Securities accordingly.
(c) EXERCISE OF OPTION. The Company shall use reasonable effort to give
notice (the "Option Notice") to NBC as soon as reasonably practicable either
before or after the issuance of the New Securities, specifying the amount and
type of securities to be issued and the price per share and all other material
terms of the issuance; PROVIDED, HOWEVER, that any Option Notice given by the
Company, with respect to securities issued pursuant to the exercise of options
to purchase shares of Common Stock or securities convertible into shares of
Common Stock, shall be given only on an annual basis within 90 days after the
end of the fiscal year in which such securities were issued and as to the
aggregate number of securities issued during such period in respect of such
options. If NBC desires to exercise the Option, then it shall give written
notice (the "Exercise Notice") to the Company within 30 days after delivery of
the Option Notice by the Company specifying the amount of securities that it
desires and is entitled to purchase. The closing for the purchase and sale of
the Option Securities shall occur at a place and on a date mutually agreed upon
by the Company and NBC, which date shall be within fifteen days following the
date of delivery of the Exercise Notice. If NBC does not deliver the Exercise
Notice in accordance with the 30 day period specified in this subsection (c) of
Section 3.3, then the rights of NBC to exercise the Option with respect to that
issuance of New Securities shall terminate.
ARTICLE IV
OTHER COVENANTS
Section 4.1 FCC MATTERS. The Company agrees that, except with the prior
written consent of NBC, the Company and its Affiliates shall not, directly or
indirectly, take any action that would cause any ownership interest in any of
the following to be attributable to NBC or its Affiliates for purposes of FCC
regulations: (i) a U.S. broadcast radio or television station, (ii) a U.S. cable
television system, (iii) a U.S. "daily newspaper" (as such term is defined in
Section 73.3555 of the rules and regulations of the Federal Communications
Commission, as the same may be amended from time to time), (iv) any U.S.
communications facility operated pursuant to a license granted by the Federal
Communications Commission ("FCC") and subject to the provisions of Section
310(b) of the Communications Act of 1934, as amended, or (v) any other business
which is subject to FCC regulations under which the ownership of a Person may be
subject to limitation or restriction as a result of the interest in such
business being attributed to such Person.
11
Section 4.2 CORPORATE INTEGRITY POLICY. The Company shall adopt the
Corporate Integrity Policy of NBC.
Section 4.3 LISTING ON NASDAQ OR SECURITIES EXCHANGE. The Company shall
list any shares of Class A Common Stock issuable upon conversion of the Class B
Common Stock or the Company Convertible Note on Nasdaq or on such other national
securities exchange on which shares of Common Stock are then listed. The Company
will at its expense cause all shares of Class A Common Stock issued upon
conversion of the Class B Common Stock or the Company Convertible Note to be
listed at the time of such issuance on Nasdaq and/or such other securities
exchange shares of Class A Common Stock are then listed on and shall maintain
such listing.
ARTICLE V
BOARD ACTION
Section 5.1 BOARD REPRESENTATION RIGHTS. If all of the Class B Common
Stock has been converted into Class A Common Stock, so long as NBC or its
Affiliates Beneficially Own in the aggregate at least 5% of the Total Current
Voting Power of the Company, NBC shall have the right to designate as nominees
for election to the Board of Directors, commencing with the first meeting of
stockholders following the conversion of the shares of Class B Common Stock of
the Company into shares of Class A Common Stock of the Company pursuant to the
Certificate of Incorporation, that number of persons equal to the greater of (i)
one, or (ii) that number determined by multiplying the then current number of
directors of the Company by the percentage of Total Current Voting Power then
owned by NBC and its Affiliates, but which number shall at all times be less
than a majority of the total number of members of the Board of Directors of the
Company unless NBC and its Affiliates Beneficially Own a majority of the Total
Current Voting Power of the Company. If the calculation set forth in clause (ii)
of the preceding sentence results in other than a whole number, NBC shall be
permitted to designate the nearest whole number of person(s) as designee(s). The
Company shall, subject to the fiduciary duties of the directors of the Company,
include in the slate of nominees recommended by the Company's management to
stockholders for election as directors of the Company such designee(s) of NBC.
The Company shall use its best efforts to cause its directors and management to
vote pursuant to this Section 5.2 hereof all shares for which the Company's
directors and management hold proxies or are otherwise entitled to vote in favor
of the election of such designee(s) of NBC. The Company shall give the same
scope and degree of support and use the same efforts to encourage the
stockholders to vote in favor of such designee(s) of NBC as it gives and uses
with respect to the designees of management.
ARTICLE VI
MISCELLANEOUS
Section 6.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. Except as set forth herein, NBC
may not assign any of its
12
rights hereunder to any Person other than by operation of law, in which case the
assignee shall be subject to all of the provisions of this Agreement. The
Company may not assign any of its rights hereunder to any other Person, other
than by operation of law, in which case the assignee shall be subject to all of
the provisions of this Agreement.
Section 6.2 AMENDMENT; WAIVER OF COMPLIANCES; CONFLICTS.
(a) This Agreement may be amended only by a written instrument duly
executed by NBC and the Company, having first obtained the prior approval of the
Class A Directors of the Company, specifically expressed in a resolution adopted
by a majority of the Class A Directors of the Company.
(b) Except as otherwise provided in this Agreement, any failure of any
of the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
(c) In the event of any conflict between the provisions of this
Agreement and the provisions of any other agreement, the provisions of this
Agreement shall govern and prevail.
Section 6.3 NOTICES. All notices and other communications provided for
hereunder shall be in writing and delivered by hand or sent by first class mail
or sent by telecopy (with such telecopy to be confirmed promptly in writing sent
by first class mail), sent as follows:
(i) If to NBC, addressed to:
National Broadcasting Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
13
(ii) If to the Company, addressed to:
Xenon 2, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses or telecopy number or numbers as any of
the parties hereto may most recently have designated in writing to the other
parties hereto by such notice. All such communications shall be deemed to have
been given or made when so delivered by hand or sent by telecopy, or three
business days after being so mailed.
Section 6.4 ENTIRE AGREEMENT: GOVERNING LAW.
(a) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire agreement
among the parties hereto with respect to the subject transactions contemplated
hereby and supersede all prior oral and written agreements and memoranda and
undertakings among the parties hereto with regard to this subject matter.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE OF
LAW PRINCIPLES THEREOF).
Section 6.5 INJUNCTIVE RELIEF. The parties acknowledge that a violation
of any of the terms of this Agreement will cause the other irreparable injury
for which an adequate remedy at law is not available. Therefore, the parties
agree that each party shall be entitled to an injunction, restraining order or
other equitable relief from any court of competent jurisdiction, restraining the
other from committing any violations of the provisions of this Agreement.
14
Section 6.6 EXPENSES. The Company and NBC shall bear their own expenses
incurred with respect to this Agreement and the transactions contemplated
hereby.
Section 6.7 HEADINGS. The Section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.8 SEVERABILITY. In the event that any of the provisions of
this Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will
not be affected thereby.
Section 6.9 RECAPITALIZATIONS, EXCHANGES, ETC. AFFECTING THE SHARES.
The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Shares and to any and all securities of the Company
or any successor or assignee of the Company (whether by merger, consolidation,
sale of assets, or otherwise) which may be issued in respect of, in exchange
for, or in substitution of, such securities and shall be appropriately adjusted
for any stock dividends, splits, reverse splits, combinations,
reclassifications, recapitalizations, reorganizations and the like occurring
after the date hereof.
Section 6.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XENON 2, INC.
By:
---------------------------------
Name:
Title:
NATIONAL BROADCASTING COMPANY, INC.
By:
---------------------------------
Name:
Title:
16
TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I CERTAIN DEFINITIONS.....................................................................1
ARTICLE II STANDSTILL PROVISIONS..................................................................6
Section 2.1 Restrictions on NBC's Activities Regarding the Company and its Stock............6
Section 2.2 Purchases by NBC Parent.........................................................7
Section 2.3 Disapplication of Standstill Limit..............................................7
ARTICLE III TRANSFERS BY NBC......................................................................8
Section 3.1 Restrictions on Transfer........................................................8
Section 3.2 Endorsement of Certificates.....................................................9
Section 3.3 Stock Purchase Rights...........................................................9
ARTICLE IV OTHER COVENANTS.......................................................................11
Section 4.1 FCC Matters....................................................................11
Section 4.2 Corporate Integrity Policy.....................................................12
Section 4.3 Listing on Nasdaq or Securities Exchange.......................................12
ARTICLE V BOARD ACTION...........................................................................12
Section 5.1 Board Representation Rights....................................................12
ARTICLE VI MISCELLANEOUS.........................................................................12
Section 6.1 Successors and Assigns.........................................................12
Section 6.2 Amendment; Waiver of Compliances; Conflicts....................................13
Section 6.3 Notices........................................................................13
Section 6.4 Entire Agreement: Governing Law................................................14
Section 6.5 Injunctive Relief..............................................................14
Section 6.6 Expenses.......................................................................15
Section 6.7 Headings.......................................................................15
Section 6.8 Severability...................................................................15
Section 6.9 Recapitalizations, Exchanges, Etc. Affecting the Shares........................15
Section 6.10 Counterparts...................................................................15