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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of the 12th
day of October, 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");
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; and
WHEREAS, the Board of Directors of Metricom has approved the purchase of
the Shares by Buyer for purposes of Section 203 of the Delaware General
Corporation Law.
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 $18,084,500, the aggregate of seven (7) 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 LLP,
0000 Xxxxxx xx xxx Xxxxx, 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 $18,084,500 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.
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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
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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.
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
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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 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
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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.
6.4 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.
6.5 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]
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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: Xxxxxxx Xxxxx
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Title: Vice President
XXXXXXX INVESTMENTS
By: Xxxxx Xxxxxxxx
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Title: Vice President
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