{"id":43722,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stock-purchase-agreement-xoom-com-inc-and-national.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-purchase-agreement-xoom-com-inc-and-national","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-purchase-agreement-xoom-com-inc-and-national.html","title":{"rendered":"Stock Purchase Agreement &#8211; Xoom.com Inc. and National Broadcasting Co. Inc."},"content":{"rendered":"<pre>\n                            STOCK PURCHASE AGREEMENT\n\n\n          This Stock Purchase Agreement (the 'Agreement') is entered into as of\nJune 11, 1999 by and among Xoom.com, Inc., a Delaware corporation (the\n'Company'), and National Broadcasting Company, Inc. (together with its\nsuccessors and permitted assigns, the 'Purchaser').  The Company desires to\nsell, and the Purchaser desires to purchase, an aggregate of 960,028 shares (the\n'Shares') of the Company's common stock, $.0001 par value per share (the 'Common\nStock'), on the terms and subject to the conditions set forth herein. \nAccordingly, the Company and the Purchaser hereby agree as follows:\n\n     1.   AGREEMENT TO PURCHASE.  \n\n          (a)  At the Stock Closing (as defined below), and subject to the terms\nand conditions set forth in this Agreement, the Purchaser will purchase the\nShares from the Company, and the Company will issue and sell the Shares to the\nPurchaser, for an aggregate purchase price of $55,000,000 ($57.29 per Share).\n\n          (b)  Upon the original issuance of the Shares by the Company to the\nPurchaser and until such time as the same is no longer required under the\napplicable requirements of the Securities Act or applicable state securities\nlaws, any certificate issued representing and such Shares shall bear the\nfollowing legend: \n\n     'THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER\nTHE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND\nMAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS (A) THEY ARE SO\nREGISTERED OR (B) AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND THE ISSUER IS\nFURNISHED WITH AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER TO\nTHAT EFFECT.'\n\n     2.   CLOSING.  Subject to the satisfaction of the conditions set forth \nin Section 6 below, the closing of the purchase and sale of the Shares \nhereunder (the 'Stock Closing') shall occur three business days after the HSR \nCondition (as defined below) has been satisfied.  Upon payment of the \npurchase price for the Shares, by wire transfer of immediately available \nfunds to an account specified by the Company, the Company will deliver to the \nPurchaser a certificate or certificates representing such Shares, registered \nin the name of the Purchaser.\n\n     3.   REPRESENTATIONS AND WARRANTIES OF THE COMPANY.  The Company \nrepresents and warrants, as of the date hereof and as of the Stock Closing, \nas follows:\n\n          (1)  MERGER AGREEMENT REPRESENTATIONS.  The representations and \nwarranties of the Company contained in the Amended and Restated Agreement and \nPlan of Contribution, \n\n\n                                                                             2\n\nInvestment and Merger, dated as of June 11, 1999 (the 'Merger Agreement'; \ncapitalized terms used herein and not otherwise defined shall have the \nmeanings ascribed to such terms in the Merger Agreement), among the \nPurchaser, GE Investments Subsidiary, Inc., Neon Media Corporation, Xenon 2, \nInc. and the Company (i) are true and correct in all material respects, in \neach case, on and as of May 9, 1999 and (ii) in the case of the \nrepresentations contained in Section 4.3(i) and 4.3(j), are true and correct \nin all material respects, in each case, on and as of the date hereof and \n(iii) will be true and in all material respects, in each case, on and as of \nthe Stock Closing, except, in each case, to the extent such representations \nand warranties by their terms speak as of a specified date, in which case \nthey are true and correct in all material respects as of such date.\n\n          (2)  AUTHORIZATION.  The Company has taken all corporate action \nrequired to authorize the execution and delivery of this Agreement and the \nperformance of its obligations hereunder, including the issuance of the \nShares, and this Agreement has been duly executed and delivered by the \nCompany and constitutes a valid and legally binding obligation of the \nCompany.  When issued to and paid for by the Purchaser in accordance with the \nterms of this Agreement, the Shares will be duly and validly issued, fully \npaid and nonassessable, and the issuance of the Shares will not be subject to \nany preemptive or similar rights that have not been waived.\n\n         (3)  CONSENTS.  Except for any filings, authorizations, consents and \napprovals as may be required under the HSR Act, no consent, approval, \nauthorization or order of any court, governmental agency or body or \narbitrator having jurisdiction over the Company or of the Company's \naffiliates is required for the execution of this Agreement or the performance \nof the Company's obligations hereunder, including, without limitation, the \nsale of the Shares to the Purchaser.\n\n         (4)  CAPITAL STOCK.  The authorized capital stock of the Company \nconsists of  80,000,000 shares of Common Stock and 5,000,000 shares of \npreferred stock, $.0001 par value per share (the 'Preferred Stock'), of the \nCompany, of which 17,449,049 shares of Common Stock and no shares of \nPreferred Stock have been issued and are outstanding as of the date hereof.  \nAll outstanding shares of Common Stock are duly authorized, validly issued, \nfully paid and non-assessable and not subject to preemptive rights created by \nstatute, the certificate of incorporation or bylaws of the Company or any \nagreement to which the Company is a party or by which it is bound and have \nbeen issued in compliance with federal and state securities laws.  There are \nno declared or accrued unpaid dividends with respect to any shares of Common \nStock. \n\n         (5)  STOCK OPTIONS.  As of the date hereof, the Company has reserved \n6,306,851 shares of Common Stock for issuance pursuant to the Xoom Plan \nOptions, Xoom Non-Plan Options and the \n\n\n\n                                                                             3\n\nMightyMail Networks, Inc. 1999 Stock Option Plan (the 'MightyMail Plan'), of \nwhich 3,363,009 have been issued as of the date hereof, of which 2,052,967 \nshares remain subject to Xoom Plan Options unexercised as of the date hereof, \n742,282 shares remain subject to Xoom Non-Plan Options unexercised as of the \ndate hereof and 21,182 shares remain subject to the MightyMail Plan \nunexercised as of the date hereof.  None of the Xoom Options will be \naccelerated in any way by the transactions contemplated by this Agreement. \n\n          (6)  SECTION 203.  The Boards of Directors of the Company and each \nof its Subsidiaries has taken appropriate action so that the provisions of \nSection 203 of the DGCL restricting 'business combinations' with 'interested \nstockholders' (each as defined in such Section 203) will not, prior to the \ntermination of this Agreement pursuant to Section 7(a) hereof, apply to the \nPurchaser or any of its Affiliates with respect to this Agreement or any of \nthe transactions contemplated hereby.\n\n     4.   REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.  The Purchaser \nrepresents and warrants, as of the date hereof and as of the Stock Closing, \nas follows:\n\n         (1)  AUTHORIZATION.  The Purchaser has taken all corporate action \nrequired to authorize the execution and delivery of this Agreement and the \nperformance of its obligations hereunder and this Agreement has been duly \nexecuted and delivered by the Purchaser and constitutes a valid and legally \nbinding obligation of the Purchaser. \n\n         (2)  CONSENTS.  Except for any filings, authorizations, consents and \napprovals as may be required under the HSR Act, no consent, approval, \nauthorization or order of any court, governmental agency or body or \narbitrator having jurisdiction over the Purchaser or of the Purchaser's \naffiliates is required for the execution of this Agreement or the performance \nof the Purchaser's obligations hereunder, including, without limitation, the \npurchase of the Shares from the Company.\n\n         (3)  PURCHASE FOR INVESTMENT. The Purchaser is acquiring the Shares \nfor its own account for investment purposes and not with a view to the \ndistribution thereof within the meaning of the Securities Act.\n\n         (4)  RESTRICTED SECURITIES.  The Purchaser understands that the \nShares constitute 'restricted securities' within the meaning of Rule 144 \nunder the Securities Act and may not be sold, pledged or otherwise disposed \nof unless they are subsequently registered under the Securities Act and \napplicable state securities laws or unless an exemption from registration is \navailable.\n\n\n\n                                                                             4\n\n         (5)  ACCREDITED INVESTOR.  The Purchaser is an 'accredited investor' \nwithin the meaning of Rule 501 under the Securities Act.\n\n      5.   CONDUCT OF BUSINESS OF THE COMPANY.  The Company agrees that, \nexcept as provided or permitted by the terms of the Merger Agreement, it \nshall not issue, purchase or redeem, or authorize or propose the issuance, \npurchase or redemption of, or declare or pay any dividend with respect to, \nany shares of capital stock of the Company or any class of securities \nconvertible into, or rights, warrants or options to acquire, any such shares \nof other convertible securities.\n\n     6.   AGREEMENT TO VOTE SHARES.  At every meeting of the stockholders of \nthe Company called with respect to any of the following, and at every \nadjournment thereof, and on every action or approval by written consent of \nthe stockholders of the Company with respect to any of the following, the \nPurchaser agrees that it shall vote (or cause to be voted) all of the Shares \nthat it beneficially owns on the record date of any such vote or action in \nfavor of the adoption of the Agreement and Plan of Contribution and Merger, \ndated May 9, 1999, among CNET, Inc., the Company, Xenon 2, Inc., Xenon 3, \nInc., and Snap! LLC and the approval of the Company's adoption of the Merger \nAgreement and the approval of the terms thereof (with such modifications as \nthe parties thereto may make (except for modifications that would adversely \naffect the Purchaser)) and each of the other transactions contemplated by \nsuch agreements.\n\n     7.   CONDITIONS TO CLOSING.  The obligations hereunder of the Company \nand the Purchaser shall be subject to and conditioned upon the satisfaction \nor waiver by the appropriate party of each of the following conditions on or \nprior to the Stock Closing:\n\n         (1)  NO INJUNCTIONS OR RESTRAINTS.  At the Stock Closing, there \nshall be (i) no injunction, restraining order or other decree of any nature \nof any court of competent jurisdiction or other Governmental Authority that \nis in effect that restrains or prohibits the consummation of any of the \ntransactions contemplated hereby, and (ii) no action taken, or any statute, \nrule, regulation or order enacted, entered, enforced or deemed applicable to \nthe transactions contemplated hereby, which makes the consummation of this \nAgreement and the transactions herein illegal; PROVIDED, HOWEVER, that the \nparties hereto shall use their reasonable commercial efforts to have such \ninjunction, order, decree, claim, action, suit, statute, rule or regulation \nvacated or declared inapplicable as expeditiously as practicable.\n\n         (2)  ACCURACY OF REPRESENTATIONS AND WARRANTIES.  The \nrepresentations and warranties of each party shall be true and correct in all \nmaterial respects, in each case, as of the date hereof and as of the Stock \nClosing, as if such representations and warranties had been made on and as of \nsuch dates (except with respect to representations and warranties that, by \ntheir terms, are made as of a different date, which must be true and correct \nin all material respects as of such date).\n\n\n                                                                             5\n\n         (3)  COVENANTS OF THE PARTIES.  Each party shall have performed its \nobligations hereunder that are required to be performed at or prior to the \nStock Closing.\n\n         (4)  REGULATORY AUTHORIZATION.  Any required waiting period \napplicable to the purchase of the Shares hereunder pursuant to the HSR Act \nshall have expired or been terminated (the 'HSR Condition').  The Company and \nthe Purchaser will make all filings and take all reasonable actions within \ntheir respective control required in order to satisfy the HSR Condition; \nprovided that neither party will be required to dispose of or agree to hold \nseparate any assets or business operations or to agree to any restriction on \nits business activities in connection therewith. \n\n     8.   MISCELLANEOUS.\n\n         (1)  The terms and conditions of this Agreement represent the entire \nagreement between the parties with respect to the subject matter hereof and \nsupersede any prior agreements or understandings, whether written or oral, \nbetween the parties respecting such subject matter. This Agreement may be \nmodified only in a writing signed by the party against whom such modification \nis to be enforced.\n\n         (2)  The Purchaser may not assign, other than to an affiliate, this \nAgreement or any rights or obligations hereunder without the prior written \nconsent of the Company, and the Company may not assign this Agreement or any \nrights or obligations hereunder without the prior written consent of the \nPurchaser.\n\n         (3)  This Agreement shall be construed and enforced in accordance \nwith the laws of the state of New York applicable to agreements between \nresidents of New York wholly executed and wholly performed therein.\n\n         (4)  This Agreement may be executed in one or more counterparts, and \nsuch counterparts shall together constitute one and the same agreement.\n\n\n                                                                             6\n\n          IN WITNESS WHEREOF, the parties have entered into this Agreement as \nof the date first set forth above.\n\n                              XOOM.COM, INC.\n\n\n                              By: \/s\/ Chris Kitze\n------------------------         ---------------------------------\n                              Name: Chris Kitze\n------------------------           -------------------------------\n                              Title: Chairman\n------------------------            ------------------------------\n\n\n                              NATIONAL BROADCASTING\n                              COMPANY, INC.\n\n\n                              By: \/s\/ Mark W. Begor\n------------------------         ---------------------------------\n                              Name: Mark W. Begor\n------------------------           -------------------------------\n                              Title: Executive Vice President\n------------------------            ------------------------------\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7615,9374],"corporate_contracts_industries":[9510,9452],"corporate_contracts_types":[9622,9627],"class_list":["post-43722","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-general-electric-co","corporate_contracts_companies-xoom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-manufacturing__conglomerates","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43722","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43722"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43722"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43722"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43722"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}