EXHIBIT 2.3
================================================================================
Registration Rights Agreement
between
▇▇▇▇.▇▇▇, Inc.
and
National Broadcasting Company, Inc.
Dated: June 11, 1999
================================================================================
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
---------
entered into as of June 11, 1999, by and between ▇▇▇▇.▇▇▇, Inc., a Delaware
corporation (together with its successors and assigns, "Xoom"), and National
----
Broadcasting Company, Inc., a Delaware corporation (together with its successors
and assigns, "NBC").
---
RECITALS
--------
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of June 11,
1999 (the "Stock Purchase Agreement"), between Xoom and NBC, NBC will acquire
------------------------
960,028 shares of common stock, par value $0.0001 per share, of Xoom (the
"Common Stock");
-------------
WHEREAS, in consideration of the Stock Purchase Agreement, Xoom has
agreed to provide to NBC certain registration rights under the Securities Act
(as defined below).
NOW, THEREFORE, in consideration of the Stock Purchase Agreement, the
mutual promises and agreements set forth herein and therein, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following
-----------
capitalized terms have the following meanings:
"Prospectus": The prospectus included in any Registration Statement
----------
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Securities": All shares of Common Stock issued or
----------------------
issuable to NBC upon the consummation of the Stock Purchase Agreement.
Registrable Securities shall also include any shares of Common Stock or other
securities (or shares of Common Stock underlying such other securities) that may
be received by NBC (x) as a result of a stock dividend on or stock split of
Registrable Securities or (y) on account of Registrable Securities in a
recapitalization of or other transaction involving Xoom.
"Registration Statement": Any registration statement of Xoom under
----------------------
the Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the related Prospectus, any preliminary
prospectus, all amendments and supplements to such registration statement
(including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Registration Rights Agreement
"SEC": The Securities and Exchange Commission.
---
"Securities Act": The Securities Act of 1933, as amended.
--------------
"Underwritten Offering": A distribution, registered pursuant to the
---------------------
Securities Act, in which securities of Xoom are sold to the public through one
or more underwriters.
Section 2. Demand Registration.
-------------------
(a) Requests for Registration by NBC. As of October 1, 1999 and
--------------------------------
thenceforth, subject to the conditions set forth in this Agreement, NBC will
have the right, by written notice delivered to Xoom (a "Demand Notice"), to
-------------
require Xoom to register Registrable Securities under and in accordance with the
provisions of the Securities Act (a "Demand Registration"), provided that
------------------- --------
effective on the date of this Agreement and subject to the conditions set forth
herein (i) NBC may not make more than one Demand Registration, (ii) Xoom shall
not be required to filed a Registration Statement prior to December 12, 1999,
(iii) Xoom shall not be required to cause a Registration Statement to be
declared effective prior to January 1, 2000, (iv) NBC may not deliver a Demand
Notice prior to the earlier of January 1, 2000 or the termination of the Merger
Agreement (as defined in Section 8(i)) (v) such Demand Registration may not be
required unless NBC provides to Xoom a certificate (the "Authorizing
-----------
Certificate"), seeking to include Registrable Securities in such Demand
Registration with a market value of at least $10,000,000 (calculated based on
the closing sale price of such securities on the principal securities exchange
where such securities are listed on the business day immediately preceding the
date of the Demand Notice) as of the date the Demand Notice is given, (vi) in
any underwritten offering, shares may be excluded by the underwriters based on
market conditions and marketing factors. The Authorizing Certificate shall set
forth (A) the name of the representative of NBC signing such Authorizing
Certificate, (B) the number of Registrable Securities held by NBC, and, if
different, the number of Registrable Securities NBC has elected to have
registered, and (C) the intended methods of disposition of the Registrable
Securities. Notwithstanding the foregoing, a good faith decision by NBC to
withdraw Registrable Securities from registration will not affect Xoom's
obligations hereunder even if the amount remaining to be registered has a market
value of less than $10,000,000 (calculated as aforesaid).
(b) Filing and Effectiveness. Xoom will file a Registration
------------------------
Statement relating to any Demand Registration within 60 days following the date
on which the Demand Notice is given and will use all reasonable efforts to cause
the same to be declared effective by the SEC as soon as practicable thereafter.
NBC will be permitted to withdraw in good faith all or part of the
Registrable Securities from a Demand Registration at any time prior to the
effective date of such Demand Registration, in which event Xoom will promptly
amend or, if applicable, withdraw the related Registration Statement.
(c) Postponement of Demand Registration. Xoom will be entitled to
-----------------------------------
postpone the filing period of any Demand Registration for a reasonable period of
time not in excess of 90
2
Registration Rights Agreement
calendar days if Xoom determines, in the good faith exercise of the business
judgment of its Board of Directors, that such registration and offering could
materially interfere with bona fide financing plans of Xoom or would require
---- ----
disclosure of information, the premature disclosure of which could materially
and adversely affect Xoom. If Xoom postpones the filing of a Registration
Statement, it will promptly notify NBC in writing (i) when the events or
circumstances permitting such postponement have ended and (ii) that the decision
to postpone was made by the Board of Directors of Xoom in accordance with this
Section 3(d).
Section 3. Piggyback Registration.
----------------------
(a) Right to Piggyback. If at any time Xoom proposes to file a
------------------
Registration Statement, whether or not for sale for Xoom's own account, on a
form and in a manner that would also permit registration of Registrable
Securities, Xoom shall give to NBC, written notice of such proposed filing at
least thirty (30) days before the anticipated filing. The notice referred to in
the preceding sentence shall offer NBC the opportunity to register such amount
of Registrable Securities as NBC may request (a "Piggyback Registration").
----------------------
Subject to Section 3(b), Xoom will include in each such Piggyback Registration
all Registrable Securities with respect to which Xoom has received written
requests for inclusion therein. NBC will be permitted to withdraw all or part
of the Registrable Securities from a Piggyback Registration at any time prior to
the effective date of such Piggyback Registration.
Unless otherwise provided herein, Xoom will not be obligated to effect
any registration of Registrable Securities under this Section 3 as a result of
the registration of any of its securities in connection with mergers,
acquisitions, exchange offers, dividend reinvestment and share purchase plans
offered solely to current holders of Common Stock, rights offerings or option or
other employee benefit plans.
(b) Priority on Piggyback Registrations. Xoom will cause the
-----------------------------------
managing underwriter or underwriters of a proposed Underwritten Offering on
behalf of Xoom to permit NBC to include therein all such Registrable Securities
requested to be so included on the same terms and conditions as any securities
of Xoom included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such Underwritten Offering delivers a written
opinion to the NBC to the effect that (i) the total amount of securities that
NBC and Xoom propose to include in such Underwritten Offering or (ii) the effect
of the potential withdrawal of any Registrable Securities by NBC (except if NBC
has theretofore waived its right to withdraw all or part of its Registrable
Securities pursuant to Section 3(a)) prior to the effective date of the
Registration Statement relating to such Underwritten Offering, is such as to
materially and adversely affect the success of such offering, then the amount of
securities to be included therein for the account of NBC will, if necessary, be
reduced and there will be included in such underwritten offering the number of
Registrable Securities that, in the written opinion of such managing underwriter
or underwriters, can be sold without materially and adversely affecting the
success of such Underwritten Offering, the securities of any holder or holders
of securities initiating the registration shall receive priority in such
Underwritten Offering to the full extent of the securities such holder or
holders desire to sell and the remaining allocation available for sale, if any,
shall be allocated pro rata among NBC and any other holders on the basis of the
--- ----
amount of securities requested to be included therein by each such holder. The
managing underwriter or
3
Registration Rights Agreement
underwriters, applying the same standard, may also exclude entirely from such
offering all Registrable Securities proposed to be included in such offering to
the extent the Registrable Securities are not of the same class as securities of
Xoom included in such offering.
Section 4. Registration Procedures. In connection with Xoom's
-----------------------
registration obligations pursuant to Sections 2 and 3, Xoom will effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
Xoom will as soon as practicable, but in no event later than 60 days after
delivery of the Demand Notice, and in each case to the extent applicable:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by NBC thereof in
accordance with the intended method or methods of distribution thereof, and use
its best efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided, however, that before filing a
-------- -------
Registration Statement or Prospectus or any amendments or supplements thereto
(including documents that would be incorporated or deemed to be incorporated
therein by reference) Xoom will furnish to NBC copies of all such documents
proposed to be filed, which documents will be subject to the review of NBC and
any underwriters, and Xoom will not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (including such
documents that, upon filing, will be incorporated or deemed to be incorporated
by reference therein) to which NBC or the managing underwriter, if any, shall
reasonably object on a timely basis;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective as provided herein; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented;
(c) notify NBC and the managing underwriters, if any, promptly, and
(if requested by any such person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time the representations and warranties of Xoom contained in any agreement
contemplated by Section 4(n) (including any underwriting agreement) cease to be
true and correct, (v) of the receipt by Xoom of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the
4
Registration Rights Agreement
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the occurrence of any
event that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in a Registration Statement, Prospectus or any such document so that, in
the case of the Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, in the
case of the Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vii) of Xoom's reasonable determination that a post-
effective amendment to a Registration Statement would be appropriate;
(d) use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment;
(e) if requested by the managing underwriters, if any, or NBC, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and NBC agree should be
included therein as may be required by applicable law and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after Xoom have received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that Xoom will not be required to take any actions under this
-------- -------
Section 4(e) that are not, in the opinion of counsel for Xoom, in compliance
with applicable law;
(f) furnish to NBC and each managing underwriter, if any, without
charge, at least one conformed copy of the Registration Statement and any post-
effective amendment thereto, including financial statements (but excluding
schedules, all documents incorporated or deemed incorporated therein by
reference and all exhibits, unless requested in writing by NBC, NBC's counsel or
such underwriter);
(g) deliver to NBC and the underwriters, if any, without charge as
many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request; and Xoom hereby
consents to the use of such Prospectus or each amendment or supplement thereto
by NBC and the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto;
(h) prior to any public offering of Registrable Securities, to
register or qualify or cooperate with NBC, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any seller or underwriter reasonably
requests in writing; use all
5
Registration Rights Agreement
reasonable efforts to keep such registration or qualification (or exemption
therefrom) effective during the period the applicable Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in each such jurisdiction of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that Xoom will not be required to (i) qualify to do
-------- -------
business in any jurisdiction where it is not then so qualified or (ii) take any
action that would subject it to service of process in any such jurisdiction
where it is not then so subject;
(i) cooperate with NBC and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and enable such Registrable Securities to be
in such denominations and registered in such names as the managing underwriters,
if any, shall request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(j) use all reasonable efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States except as may be required solely as a consequence of the nature of NBC's
business, in which case Xoom will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals as may
be necessary to enable the seller or sellers thereof or the underwriters, if
any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section 4(c)(vi)
or 4(c)(vii), prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(l) if requested by NBC or the managing underwriters, if any, use its
best efforts to cause all Registrable Securities covered by such Registration
Statement to be (i) listed on each securities exchange, if any, on which similar
securities issued by Xoom are then listed or, if no similar securities issued by
Xoom are then so listed, on the New York Stock Exchange or another national
securities exchange if the securities qualify to be so listed or (ii) authorized
to be quoted on the National Association of Securities Dealers Automated
Quotation System ("Nasdaq") or the National Market System of Nasdaq, if the
------
securities qualify to be so quoted;
(m) as needed, (i) engage an appropriate transfer agent and provide
the transfer agent with printed certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Securities;
(n) enter into such customary agreements (including, in the event of
an Underwritten Offering, an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all such other commercially
reasonable and customary actions in connection therewith (including those
reasonably requested by NBC or, in the event of an
6
Registration Rights Agreement
Underwritten Offering, those reasonably requested by the managing underwriters)
in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to NBC and the
underwriters, if any, with respect to the businesses of Xoom and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference therein, if any, in each case,
in form, substance and scope as are customarily made by issuers to underwriters
in underwritten offerings and confirm the same if and when requested; (ii)
obtain opinions of counsel to Xoom and updates thereof, which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and NBC, addressed to NBC and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by NBC and underwriters, including, without limitation, the matters
referred to in Section 4(n)(i); (iii) use reasonable efforts to obtain "comfort"
letters and updates thereof from the independent certified public accountants of
Xoom (and, if necessary, any other certified public accountants of any
subsidiary of Xoom or of any business acquired by Xoom for which financial
statements and financial data is, or is required to be, included in the
Registration Statement), addressed to NBC and each of the underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by NBC and the managing underwriters, if any, to evidence the
continued validity of the representations and warranties of Xoom and its
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or similar
agreement entered into by Xoom. The foregoing actions will be taken in
connection with each closing under such underwriting or similar agreement as and
to the extent required thereunder;
(o) make available for reasonable inspection during normal business
hours by a representative of NBC, any underwriter participating in any
disposition of Registrable Securities, and any attorney or accountant retained
by NBC or underwriter, all financial and other records, pertinent corporate
documents and properties of Xoom and its subsidiaries, and cause the officers,
directors and employees of Xoom and its subsidiaries to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided, however,
-------- -------
that any records, information or documents that are designated by Xoom in
writing as confidential at the time of delivery of such records, information or
documents will be kept confidential by such persons unless (i) such records,
information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of such records, information or documents is required
by court or administrative order or is necessary to respond to inquiries of
regulatory authorities, or (iii) disclosure of such records, information or
documents, in the reasonable opinion of counsel to such person, is otherwise
required by law (including, without limitation, pursuant to the requirements of
the Securities Act);
(p) comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements satisfying
the provisions of Section 1l(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the
7
Registration Rights Agreement
Securities Act) no later than 45 calendar days after the end of any 12-month
period (or 90 calendar days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering, or (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of Xoom, after
the effective date of a Registration Statement, which statements shall cover
said 12-month period;
(q) take any and all actions necessary to become eligible, and use
all reasonable efforts to remain eligible to file registration statements on
Form S-3 and do any and all other acts or things necessary or advisable to
comply with applicable rules and regulations regarding Form S-3, including, but
not limited to, making all filings required by the SEC and complying with any
and all time limits in connection therewith; and
(r) use all reasonable efforts to file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time Xoom is not required to file such reports, it will, upon the
request of NBC, make publicly available other information so long as necessary
to permit sales of NBC's Registrable Securities pursuant to Rule 144 and 144A;
will take such further action as NBC may reasonably request, all to the extent
required from time to time to enable NBC to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A; and upon the request of NBC shall deliver to NBC
a written statement as to whether it has complied with this paragraph (r).
(s) In connection with any underwritten offering, cause appropriate
members of management to cooperate and participate on a reasonable basis in the
underwriters' "road show" conferences related to such offering.
Xoom may require NBC to furnish to Xoom such information regarding the
distribution of such Registrable Securities as Xoom may, from time to time,
reasonably request in writing and Xoom may exclude from such registration the
Registrable Securities with respect to which NBC unreasonably fails to furnish
such information within a reasonable time after receiving such request. NBC
promptly will notify Xoom of the occurrence of any event that makes any of such
information untrue in any material respect or that requires making a change in
such information so that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated or necessary to
make the statement therein, in light of the circumstances under which they were
made, not misleading.
NBC will be deemed to have agreed by virtue of its acquisition of
Registrable Securities that, upon receipt of any notice from Xoom of the
occurrence of any event of the kind described in Section 4(c)(ii), 4(c)(iii),
4(c)(v), 4(c)(vi) or 4(c)(vii) ("Suspension Notice"), NBC will forthwith
-----------------
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus (a "Black-Out") until NBC's receipt of the
---------
copies of the supplemented or amended Prospectus contemplated by Section 4(k),
or until it is advised in writing (the "Advice") by Xoom that the use of the
------
applicable Prospectus may be resumed, and NBC has received copies of any
additional or supplemental filings that are incorporated or
8
Registration Rights Agreement
deemed to be incorporated by reference in such Prospectus. Except as expressly
provided herein, there shall be no limitation with regard to the number of
Suspension Notices that Xoom is entitled to give hereunder; provided, however,
-------- -------
that in no event shall the aggregate number of days NBC is subject to Black-Out
during any period of 12 consecutive months exceed 180 days. In the event Xoom
shall give a Suspension Notice, the time period prescribed in Section 2 will be
extended by the number of days during the time period from and including the
date of the giving of such notice to and including the date when NBC shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 4(k) or (y) the Advice.
Section 5. Registration Expenses. All fees and expenses incident to the
---------------------
performance of or compliance with this Agreement by Xoom will be borne by Xoom
whether or not any of the Registration Statements become effective. Such fees
and expenses will include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses for compliance with
securities or "blue sky" laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing a
reasonable number of prospectuses if the printing of such prospectuses is
requested by NBC), (iii) messenger, telephone and delivery expenses incurred by
Xoom, (iv) fees and disbursements of counsel for Xoom incurred by Xoom, (v) fees
and disbursements of all independent certified public accountants referred to in
Section 4(n)(iii) (including the expenses of any special audit and "comfort"
letter required by or incident to such performance) incurred by Xoom, (vi)
Securities Act liability insurance, if any, and (vii) reasonable fees and
expenses of one counsel retained by NBC in connection with the registration and
sale of its Registrable Securities (which counsel will be selected by NBC). In
addition, Xoom will pay internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange on which similar securities issued by Xoom are then
listed and the fees and expenses of any person, including special experts,
retained by Xoom. In no event, however, will Xoom be responsible for any
underwriting discount or selling commission with respect to any sale of
Registrable Securities pursuant to this Agreement.
Section 6. Indemnification.
---------------
(a) Indemnification by Xoom. Xoom will, without limitation as to
-----------------------
time, indemnify and hold harmless, to the fullest extent permitted by law, NBC,
the officers, directors and agents and employees of NBC, each person who
controls NBC (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of any
such controlling person, from and against all losses, claims, damages,
liabilities, costs (including, without limitation, the costs of investigation
and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising
------
out of or based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not
9
Registration Rights Agreement
misleading, except insofar as the same are based upon information furnished in
writing to Xoom by NBC expressly for use therein.
(b) Indemnification by NBC. In connection with any Registration
----------------------
Statement in which NBC is participating, NBC will furnish to Xoom in writing
such information as Xoom reasonably request for use in connection with any
Registration Statement, Prospectus or preliminary prospectus and will indemnify,
to the fullest extent permitted by law, Xoom, its directors and officers, agents
and employees, each person who controls Xoom (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling persons, from and against all
Losses, as incurred, arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or form of Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by NBC to Xoom expressly for use in such
Registration Statement, Prospectus or preliminary prospectus and was used by
Xoom in the preparation of such Registration Statement, Prospectus or
preliminary prospectus. In no event will the liability of NBC hereunder be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by NBC upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any person shall
--------------------------------------
become entitled to indemnity hereunder (an "indemnified party"), such
-----------------
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
------------------
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
-------- -------
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. The
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interest between such indemnified party and any other party represented by such
counsel in such proceeding. All fees and expenses (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) will be paid to the indemnified party, as incurred, within
five calendar days of written notice thereof to the indemnifying party
(regardless of whether it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder). The indemnifying party will not
consent to entry of any judgment or enter into any settlement or otherwise seek
to terminate any action or proceeding in which any indemnified party is or could
be a party and as to which indemnification or contribution could be sought by
such indemnified party under this Section 8, unless such judgment, settlement or
other termination includes as an unconditional term thereof the giving by
10
Registration Rights Agreement
the claimant or plaintiff to such indemnified party of a release, in form and
substance satisfactory to the indemnified party, from all liability in respect
of such claim or litigation for which such indemnified party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
------------
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b) in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), NBC will not be required to
contribute any amount in excess of the amount by which the net proceeds which
the Registrable Securities sold by such indemnifying party and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 1l(f) of
the Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
Xoom hereunder will be in addition to any liability Xoom may otherwise have
hereunder or otherwise. The provisions of this Section 6 will survive so long as
Registrable Securities remain outstanding, notwithstanding any permitted
transfer of the Registrable Securities by NBC thereof or any termination of this
Agreement.
Section 7. Underwritten Registrations. If any of the Registrable
--------------------------
Securities included in any Demand Registration are to be sold in an Underwritten
Offering, NBC may select an investment banker or investment bankers and manager
or managers to manage the Underwritten Offering. If any Piggyback Registration
is an Underwritten Offering, Xoom will have the exclusive right to select the
investment banker or investment bankers and managers to administer
11
Registration Rights Agreement
the offering. Each party hereto agrees that, in connection with any Underwritten
Offering hereunder, it shall undertake to offer customary indemnification to the
participating underwriters.
Section 8. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by Xoom of its obligations
--------
under this Agreement, NBC, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Xoom agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any provision of this Agreement and hereby further agrees that,
in the event of any action for specific performance in respect of such breach,
it will waive the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented without the prior written consent of Xoom
and NBC.
(c) Notices. Except as set forth below, all notices and other
-------
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to Xoom and NBC at the
following addresses (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof):
If to Xoom: Xoom, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
12
Registration Rights Agreement
If to NBC: National Broadcasting Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) Successors and Assigns. Any transferee of all or a portion of
----------------------
the Registrable Securities shall assume all of the rights and obligations of NBC
hereunder to the extent it agrees in writing, to be bound by all of the
provisions applicable hereunder to NBC. Subject to the requirements of this
Section 8(d), this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the parties hereto. NBC shall not assign any of
its rights hereunder to any third party except in connection with the transfer
of a number of shares equal to at least 25% of the Shares purchased by NBC or
its affiliates pursuant to the Stock Purchase Agreement which transferee shall
have agreed in writing to be bound by all of the provisions applicable hereunder
to NBC.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and will not limit or otherwise affect the meaning.
(g) Governing Law. This agreement will be governed by and construed
-------------
in accordance with the laws of the State of New York applicable to contracts
executed and performed within such state.
(h) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
13
Registration Rights Agreement
(i) Termination. This Agreement shall terminate upon the earlier of
-----------
(i) the consummation of the transactions contemplated by the Amended and
Restated Agreement and Plan of Contribution, Investment and Merger, dated as of
June __, 1999 (the "Merger Agreement"), among NBC, GE Investments Subsidiary,
Inc., Neon Media Corporation, Xenon 2, Inc. and Xoom but shall not terminate
upon the termination of the Merger Agreement and (ii) the date upon which NBC
shall be able to dispose of all of its remaining Registrable Securities in one
day without registration pursuant to Rule 144 of the Securities Act.
(j) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Signature page follows]
14
Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
▇▇▇▇.▇▇▇, Inc.
By:
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
National Broadcasting Company, Inc.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
15