Exhibit 10.25
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of February 4, 1999 (this
"Agreement"), is entered into by and between Xxxx-Xxxxx Inc., a Delaware
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corporation (the "Company"), and Vulcan Ventures Inc., a Washington corporation
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("Vulcan").
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WITNESSETH
WHEREAS, the Company desires to issue and sell shares of the Company's
Common Stock, par value $.01 per share (such Common Stock, together with any
other equity security of the Company which may be issued in respect of any stock
split or stock dividend of such Common Stock or into which such Common Stock may
be reclassified or recapitalized prior to the Closing referred to below, being
referred to herein as the "Common Stock"), to Vulcan, and Vulcan desires to
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purchase shares of Common Stock from the Company, on the terms set forth herein;
NOW THEREFORE, the Company and Vulcan hereby agree as follows:
1. Purchase. On the terms and subject to the conditions set forth
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herein, the Company agrees to issue and sell to Vulcan, and Vulcan agrees to
purchase from the Company, at the Closing, 3,030,303 shares of Common Stock (the
"Shares") for an aggregate purchase price of $50,000,000 in cash.
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2. Closing. On the terms and subject to the conditions set forth herein,
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the closing of the purchase referred to above (the "Closing") shall take place
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(a) at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
at 10:00 A.M., New York City time, on the third business day after the first day
on which the condition set forth in Section 6.2 hereof has been satisfied or (b)
at such other place or time or on such other date as the Company and Vulcan may
agree. Vulcan agrees to pay the full purchase price for the Shares at Closing,
by wire transfer of immediately available funds to the Company in accordance
with wire transfer instructions given by the Company to Vulcan prior to the
Closing. Upon receipt of such purchase price, the Company agrees to issue and
deliver to Vulcan a certificate representing the Shares, registered in the name
of Vulcan.
3. Representations of the Company. The Company represents and warrants
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to Vulcan that:
3.1 Organization, Standing. The Company is a corporation duly
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organized and validly existing in good standing under the laws of the State
of Delaware and has all requisite power and authority to enter into and
perform its
obligations under this Agreement and the Registration Rights Agreement,
dated as of the date hereof, by and between the Company and Vulcan
(together with this Agreement, the "Transaction Documents").
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3.2 Due Authorization. The Transaction Documents have been duly
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authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by Vulcan, constitute valid
and legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
3.3 Capital Stock. The Shares to be delivered at Closing will, when
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delivered, be duly authorized, validly issued, fully paid and
nonassessable.
3.4 Absence of Conflicts. The execution, delivery and performance by
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the Company of the Transaction Documents do not and will not (a) violate
any provision of the certificate of incorporation or by-laws of the
Company, (b) violate or result in a breach of, or constitute a default
under (whether with notice or lapse of time or both), or require any
consent, authorization or approval under, or give any person the right to
terminate or accelerate the payments under, any indenture or other
agreement to which the Company is a party or to which any property of the
Company is subject (other than violations, breaches and defaults which, and
consents, authorizations and approvals the failure to obtain of which,
individually or in the aggregate, would not have a material adverse effect
on the business, financial condition or results of operations of the
Company and its subsidiaries taken as a whole or impede the consummation of
the sale of Shares hereunder) or (c) violate any law or regulation by which
the Company is bound or to which any property of the Company is subject.
3.5 Governmental Consent. No consent, approval or authorization of,
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or declaration or filing with, any governmental authority on the part of
the Company is required for the execution and delivery of the Transaction
Documents or the sale of the Shares to Vulcan pursuant to this Agreement,
except for the required filing under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx") and the expiration or early
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termination of the waiting period thereunder.
3.6 Company Reports; No Material Adverse Change. The Company has
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publicly filed certain registration statements and reports with the
Securities and Exchange Commission (the "SEC") and may file additional
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registration statements and reports with the SEC prior to the Closing (such
reports, including exhibits thereto and any amendments thereof, being
collectively referred to herein as the
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"Company Reports"). The Company is current in all of its reporting
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requirements with the SEC. As of their respective dates, the Company
Reports filed prior to the date hereof did not, and any Company Reports
filed with the SEC subsequent to the date hereof will not, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. Except as disclosed in or contemplated by the Company Reports,
since December 31, 1997 there has not been any material adverse change in
the business, financial condition or results of operations of the Company
and its subsidiaries taken as a whole.
4. Representations of Vulcan. Vulcan represents and warrants to the
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Company that:
4.1 Organization, Standing. Vulcan is a corporation duly organized
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and validly existing in good standing under the laws of the State of
Washington and has all requisite power and authority to enter into and
perform its obligations under the Transaction Documents.
4.2 Due Authorization. The Transaction Documents have been duly
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authorized, executed and delivered by Vulcan and, assuming due
authorization, execution and delivery thereof by the Company, constitute
valid and legally binding obligations of Vulcan enforceable against Vulcan
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
4.3 Absence of Conflicts. The execution, delivery and performance by
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Vulcan of the Transaction Documents do not and will not (a) violate
any provision of the certificate of incorporation or by-laws of
Vulcan, (b) violate or result in a breach of, constitute a default
under (whether with notice or the lapse of time or both), or require
any consent, authorization or approval under, or give any person the
right to terminate or accelerate the payments under, any indenture or
other agreement to which Vulcan is a party or to which any property of
Vulcan is subject (other than violations, breaches and defaults which,
and consents, authorizations and approvals the failure to obtain of
which, individually or in the aggregate, would not have a material
adverse effect on the business, financial condition or results of
operations of Vulcan and its subsidiaries taken as a whole or impede
the consummation of the purchase of Shares hereunder) or (c) violate
any law or regulation by which Vulcan is bound or to which any
property of Vulcan is subject.
4.4 Governmental Consent. No consent, approval or authorization of,
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or declaration or filing with, any governmental authority on the part of
Vulcan is
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required for the execution and delivery of the Transaction Documents or the
purchase of the Shares from the Company pursuant to this Agreement, except
for the required filing under the HSR Act and the expiration or early
termination of the waiting period thereunder.
4.5 Offer of Securities. Neither Vulcan nor anyone acting on behalf
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of Vulcan has taken or will take any action which could subject the sale of
the Shares pursuant to this Agreement to the registration and prospectus
delivery provisions of Section 5 of the Securities Act of 1933, as amended
(the "Securities Act").
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4.6 Evaluation; Purchase for Investment; Illiquid Investment. Vulcan
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has been furnished any and all materials relating to the Company and its
affiliates and the offering of the Shares that Vulcan has requested and
Vulcan has been afforded the opportunity to obtain any additional
information necessary to verify the accuracy of any such information.
Vulcan is a sophisticated investor capable of evaluating the merits and
risks of the purchase of the Shares. Vulcan is purchasing the Shares for
its own account as principal, for investment and not with a view to the
resale or distribution of all or any part thereof. Vulcan recognizes that
the Shares being purchased pursuant to this Agreement have not been
registered under applicable Federal or State securities laws, and that such
Shares are being offered and sold in reliance upon the exemptions from
registration provided in the Securities Act and applicable exemptions under
State securities laws. Vulcan is an accredited investor (as that term is
defined in Regulation D under the Securities Act) and has the economic
ability to maintain its investment in such Shares for an indefinite period
of time.
5. Transfer Restrictions.
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5.1 Transfer Restrictions. Vulcan agrees that it will not sell or
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otherwise transfer any Shares unless such sale or transfer is made under an
effective Securities Act registration statement or pursuant to an available
exemption from the registration requirements of the Securities Act, such
sale or transfer is otherwise made in accordance with applicable state
securities laws and all other applicable laws and Vulcan shall have
delivered to the Company an opinion of securities counsel to Vulcan
reasonably satisfactory to the Company, in form and substance reasonably
satisfactory to the Company, to the foregoing effect. In addition, Vulcan
agrees not to sell or otherwise transfer any Shares prior to the first
anniversary of the Closing unless the Company consents thereto or the
transferee is an affiliate of Vulcan and such affiliate agrees in a written
instrument, in form and substance reasonably satisfactory to the Company,
to be bound by the transfer restrictions set forth herein.
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5.2 Legend. Each certificate representing any Shares shall contain a
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legend to the following effect:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS
MADE UNDER AN EFFECTIVE SECURITIES ACT REGISTRATION STATEMENT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUCH SALE OR TRANSFER IS
OTHERWISE MADE IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS AND ALL OTHER APPLICABLE LAWS AND THE HOLDER HEREOF SHALL
HAVE DELIVERED TO THE COMPANY AN OPINION OF SECURITIES COUNSEL TO
SUCH HOLDER REASONABLY SATISFACTORY TO THE COMPANY, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO THE
FOREGOING EFFECT. IN ADDITION, THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD OR OTHERWISE TRANSFERRED PRIOR TO
[INSERT FIRST ANNIVERSARY OF THE CLOSING] UNLESS THE COMPANY
CONSENTS THERETO OR THE TRANSFEREE IS AN AFFILIATE OF THE HOLDER
AND SUCH AFFILIATE AGREES IN A WRITTEN INSTRUMENT, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO BE BOUND BY
THE TRANSFER RESTRICTIONS SET FORTH ABOVE.
Notwithstanding the foregoing, certificates issued after the Closing and
representing Shares shall not contain the foregoing legend to the extent that
Vulcan shall have delivered to the Company an opinion of Xxxxxxxx & Xxxxxxxx,
securities counsel to Vulcan reasonably satisfactory to the Company, in form and
substance reasonably satisfactory to the Company, to the effect that the
statements made in such legend are no longer relevant.
6. Conditions Precedent. The obligations of each party to consummate the
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purchase and sale of the Shares hereunder shall be subject to the satisfaction
at the Closing of the following conditions precedent:
6.1 Representations and Warranties. All representations and
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warranties made herein by the other party shall be true and correct in all
material respects at
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Closing as though made at and as of Closing, and such other party shall
have delivered at Closing a certificate of such other party to the
foregoing effect.
6.2 HSR Act. The waiting period under the HSR Act applicable to the
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purchase and sale of the Shares hereunder shall have expired or been
terminated.
6.3 Legal Opinion. In the case of Vulcan only, Vulcan shall have
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received an opinion of Xxxxxxxx & Xxxxxxxx, counsel to the Company, dated
the Closing, in a form and containing assumptions and qualifications
customary for opinions of this nature, with respect to (a) the due
incorporation and good standing of the Company, (b) the due authorization,
execution, delivery and enforceability of the Transaction Documents and (c)
the due authorization and valid issuance, and the fully paid and
nonassessable nature, of the Shares.
7. Further Assurances; Termination. Each party shall, as promptly as
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practicable after the date hereof, make the filing and thereafter make any other
required submissions under the HSR Act required by it in connection with the
sale and purchase of the Shares hereunder. In addition, each party shall take
all such other reasonable actions as may be necessary to consummate the sale and
purchase of Shares hereunder as soon as practicable. If the Closing has not
occurred by June 30, 1999, any party that is not in breach of its obligations
hereunder shall have the right, by delivering notice to the other party, to
terminate this Agreement, provided that no such termination shall relieve either
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party from any liability it may have for any breach of any of its
representations, warranties or agreements herein contained.
8. Assignment. This Agreement shall not be assignable in whole or in
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part without the prior consent of the parties hereto.
9. Governing Law. This Agreement shall be governed by, and construed and
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enforced in accordance with, the laws of the State of New York.
10. Counterparts. This Agreement may be executed by the parties hereto in
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separate counterparts, each of which shall be deemed an original, and it shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
11. Notices. All notices and other communications provided for in this
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Agreement shall be in writing and sent by hand, by first class mail or by
telecopy,
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(a) if to Vulcan, to:
Vulcan Ventures Inc.
000 000xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile:
Attn:
or to such other address as Vulcan shall have furnished to the Company in
writing, and
(b) if to the Company, to:
Xxxx-Xxxxx Inc.
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attn: General Counsel
or to such other address as the Company shall have furnished to Vulcan in
writing.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first above written.
XXXX-XXXXX INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President, Development and Planning
VULCAN VENTURES INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
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