Exhibit 6.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of the
25 day of September, 1997 by and between Vulcan Ventures, Inc., a Washington
corporation ("Buyer"), and Xxxxxxx Investments, a Massachusetts business
trust, on behalf of Xxxxxxx Dividend Fund, Xxxxxxx Growth Fund and Xxxxxxx
Bulwark Fund ("Seller").
WHEREAS, Seller is the record and beneficial owner of 2,583,500
shares (the "Shares") of the common stock of Metricom, Inc., a Delaware
company ("Metricom"); and
WHEREAS, Seller desires to sell the Shares to Buyer, and Buyer
desires to purchase the Shares from Seller, upon the terms and subject to
the conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller hereby agree as follows:
1. PURCHASE AND SALE
1.1 Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Buyer, and Buyer
agrees to purchase from Seller, the Shares at the Closing. The purchase
price for the Shares (the "Purchase Price") is $15,501,000, the aggregate of
six (6) dollars per share, in cash. The Purchase Price shall be paid as
provided in Section 1.2.
1.2 Closing. The closing (the "Closing") of the purchase and
sale of the Shares hereunder shall take place at the offices of Irell &
Xxxxxxx, 1800 Avenue of the Stars, Xxx Xxxxxxx, XX, 00000, as soon as
possible, but in no event later than five (5) business days, after
satisfaction of the conditions set forth in Section 3, or at such other time
or place as Buyer and Seller may agree. At the Closing:
(a) Buyer shall deliver to Seller $15,501,000 in
immediately available funds by wire transfer to an account of Seller
with a bank designated by Seller, by notice to Buyer, not later than
two (2) business days prior to the Closing; and
(b) Seller shall deliver to Buyer evidence satisfactory
to Buyer of the transfer of the Shares to Buyer or its designee by a
book entry at the Deposit Trust Company.
2. REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Seller. Seller represents
and warrants to Buyer that as of the date hereof and as of the Closing:
(a) Existence and Power. Seller is a business trust
duly incorporated and validly existing under the laws of the
Commonwealth of Massachusetts and has all powers and all
governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted.
(b) Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby are within Seller's powers and have
been duly authorized by all necessary action on the part of Seller.
This Agreement constitutes a valid and binding agreement of Seller,
enforceable in accordance with its terms.
(c) Ownership of Shares. Seller is the record and
beneficial owner of the Shares, free and clear of all liens and
encumbrances and any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise dispose of the
Shares), and will transfer and deliver to Buyer at the Closing valid
title to the Shares free and clear of any lien, encumbrance or any
such limitation or restriction.
2.2 Representations and Warranties of Buyer. Buyer represents
and warrants to Seller, as of the Closing, as follows:
(a) Corporate Authorization. The execution, delivery
and performance by Buyer of this Agreement and the consummation of
the transactions contemplated hereby are within Buyer's corporate
powers and have been duly authorized by all necessary corporate
action on the part of Buyer. This Agreement constitutes a valid and
binding agreement of Buyer, enforceable in accordance with its
terms.
3. CONDITIONS PRECEDENT
3.1 Conditions to Obligation of Buyer. The obligation of Buyer
to Purchase the Shares is subject to the satisfaction (or waiver by Buyer)
of the conditions set forth below:
(a) The representations and warranties made by Seller
in this Agreement shall be true and correct in all material respects
on and as of the date hereof and as of the Closing with the same
effect as if made on and as of the Closing. Seller shall have
performed and complied with all agreements, covenants and conditions
on his part required to be performed or complied with on or prior to
the Closing in all material respects.
(b) Any applicable waiting period under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act") relating to the transactions contemplated hereby shall have
expired or been terminated.
(c) The purchase of the Shares shall have been approved
without condition by the Board of Metricom and Buyer shall have
received evidence to such effect satisfactory to it in its
discretion.
3.2 Conditions to Obligation of Seller. The obligation of
Seller to sell to Buyer the Shares shall be subject to the satisfaction (or
waiver by Seller) of the conditions set forth below:
(a) The representations and warranties made by Buyer in
this Agreement shall be true and correct in all material respects on
and as of the Closing with the same effect as if made on and as of
the Closing. Buyer shall have performed and complied with all
agreements, covenants and conditions on the part of such entity
required to be performed or complied with on or prior to the Closing
in all material respects.
(b) Any applicable waiting period under the HSR Act
relating to the transactions contemplated hereby shall have expired
or been terminated.
4. ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES.
4.1 Approvals. Buyer and Seller agree to use their best efforts
and to cooperate with each other to obtain the approvals necessary to effect
the transactions hereunder.
4.2 Transfer Taxes. The parties acknowledge and agree that all
transfer, stamp, recording and similar taxes assessed or otherwise payable
by reason of the conveyance contemplated hereby shall be for the account of
and paid by Seller.
4.3 Additional Deliveries; Further Assurances. After the
Closing, each party to this Agreement shall, at the request of the other,
furnish, execute, and deliver such documents, instruments, certificates,
notices or other further assurances as the requesting party shall reasonably
request as necessary or desirable to effect complete consummation of this
Agreement and the transactions contemplated hereby.
5. TERMINATION.
If, on or prior to December 31, 1997 (a) the Closing has not
occurred (or been extended in writing by mutual consent of Buyer and
Seller), or (b) the conditions contained in Section 3 of this Agreement have
not been satisfied or waived, then this Agreement shall, on such date,
automatically and without further action by either party, terminate and have
no further force and effect. In addition, if any representation or warranty
made by any party herein shall prove to have been false, inaccurate or
misleading in any material respect when made, then the party to whom such
representation or warranty is made may terminate this Agreement by notice to
the breaching party any time prior to the Closing. Further, the Seller may
terminate this Agreement, prior to the closing, two (2) Business Days after
the giving of notice to Buyer, any time after the commencement of a tender
offer ("Tender Offer") for all of the outstanding shares of common stock of
Metricom by any Person (as defined in the Securities Exchange Act of 1934,
as amended) that is not an Affiliate (as defined in the Securities Act of
1933, as amended, and the rules promulgated thereunder) of the Buyer prior
to the waiting period under the HSR Act or prior to the receipt of approval
of the Board of Metricom as contemplated by Section 3.1(c) hereof unless
within such two Business Day time period Buyer agrees in writing to pay
Seller for the Shares the same amount offered per share in the Tender Offer.
6. MISCELLANEOUS.
6.1 Changes, Waivers, etc. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated except in
writing (including facsimile communication).
6.2 Payment of Fees and Expenses. Each of the parties hereto
shall pay its own respective fees and expenses incurred in connection
herewith.
6.3 Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall
be delivered, or mailed first-class postage prepaid, registered or certified
mail, or delivered via overnight courier;
If to Buyer: Vulcan Ventures, Inc.
000 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx, President
with copy to: Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx Xxxxx
If to Seller: Xxxxxxx Investments
0000 Xxxxxxxxxx Xxxxxx
X.X. Xxx 00000
Xx. Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to: Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxxx
Such notices and other communications shall for all purposes of this
Agreement be treated as being effective or having been given on the date of
delivery, if delivered personally, one (1) day following the date of
delivery, if delivered by overnight courier or facsimile transmission or, if
sent by mail, five (5) days thereafter.
6.5 Entire Agreement. This Agreement, including the exhibits
which are incorporated into and made an integral part of this Agreement by
reference, set forth the entire understanding of the parties and supersede
all prior agreements of the parties with respect to the subject matter
hereof.
6.6 Survival of Representations and Warranties, etc. All
representations and warranties contained herein shall survive the execution
and delivery of this Agreement.
6.6 Counterparts. This Agreement may be executed in any number
of counterparts (including facsimile transmissions) and by the parties
hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute
one and the same agreement. A faxed signature shall have the same validity
as an original signature.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date and year first above written.
VULCAN VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX INVESTMENTS
By: /s/ Xxxxx Xxxxxxxx
Title: Vice President
