Exhibit 10.21
STREAMLINE, INC.
AGREEMENT
This Agreement (this "Agreement"), dated as of September 18, 1998, is
by and among Streamline, Inc., a Delaware corporation (the "Company") and the
holders of record (the "Purchasers") of the Company's Senior Discount Notes due
April 15, 2001 (the "Senior Discount Notes") and of Common Stock Purchase
Warrants (the "Warrants") to purchase up to an aggregate of 850,000 shares of
the Company's Common Stock, par value $.01 per share ("Common Stock").
WHEREAS, the Company and the Purchasers entered into (i) a certain
Securities Purchase Agreement, dated April 15, 1998 (as amended, modified or
supplemented from time to time, the "Securities Purchase Agreement"), pursuant
to which the Purchasers agreed to purchase (A) up to $7,700,000 aggregate
principal amount of Senior Discount Notes and (B) the Warrants, (ii) a certain
Warrant Agreement, dated April 15, 1998 (the "Warrant Agreement"), and (iii) a
certain Registration Rights Agreement, dated April 15, 1998 (the "Registration
Rights Agreement");
WHEREAS, pursuant to the Warrant Agreement, 52.9412% of the Base Amount
of each Warrant became immediately vested and exercisable and the remainder of
the Base Amount of each Warrant vested and became exercisable upon terms and
conditions associated with the Company's inability to meet certain capital
financing objectives; and
WHEREAS, the Company and Nordstrom, Inc., a Washington corporation,
("Nordstrom") propose to enter into a Stock Purchase Agreement substantially in
the form attached hereto as EXHIBIT A (the "Stock Purchase Agreement") pursuant
to which Nordstrom intends to purchase 228,570 shares (the "Series D Preferred
Shares") of the Company's Series D Convertible Preferred Stock, which preferred
stock shall have the powers, designations, preferences and privileges as set
forth in the form of Certificate of Amendment of Certificate of Incorporation of
the Company, substantially in the form attached hereto as EXHIBIT B (the "Series
D Preferred");
NOW, THEREFORE, the parties hereto, in consideration of the premises
and the mutual covenants and agreements herein contained, and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, hereby agree, subject to,
conditional upon and effective simultaneously with the sale and issuance by the
Company of the Series D Preferred Shares to Nordstrom, pursuant to the Stock
Purchase Agreement, as follows:
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I. ISSUANCE OF COMMON STOCK.
Subject to the terms and conditions set forth herein, the Company
hereby agrees to issue and sell to each Purchaser and each of the Purchasers
agrees to purchase from the Company the number of shares (the "Shares") of
Common Stock set forth opposite such Purchaser's name on SCHEDULE 1 attached
hereto, in consideration for each Purchaser's (i) paying to the Company the
amount set forth opposite such Purchaser's name on SCHEDULE 1 attached hereto,
(ii) agreeing to the amendment to the Warrant Agreement specified in Section III
below and (iii) agreeing to the amendment to the Registration Rights Agreement
specified in Section IV below. Such shares shall be registered in the name of
each Purchaser or its nominee as indicated on SCHEDULE 1.
II. APPROVAL AND AGREEMENT OF PURCHASERS.
Subject to the terms and conditions set forth herein, each Purchaser
hereby:
(i) approves the sale and issuance by the Company of the Series D
Preferred Shares to Nordstrom pursuant to the Stock Purchase Agreement, and any
issuance by the Company of shares of Series D Preferred in payment of any
dividend on, and shares of Common Stock issuable upon conversion of, the Series
D Preferred Shares, and
(ii) agrees that such sale and issuances satisfy the Company's
obligations pursuant to subsections (b) and (c) of Section 2.2 of the Warrant
Agreement and subsections (a) and (b) of Section 7.24 of the Securities Purchase
Agreement.
III. WARRANT AGREEMENT.
Subject to the terms and conditions set forth herein (and, in any
event, with respect to clause (ii) below, upon satisfaction of Subparagraph
1.(c) of Section VII of this Agreement,) the Warrant Agreement is hereby amended
by:
(i) deleting subparagraphs (b), (c) and (d) in their entirety and
replacing them with the following:
(b) No Warrant Certificate shall become vested or exercisable
for more than 52.9412% of the Base Amount of such Warrant Certificate,
and
(ii) deleting the third, fourth and fifth sentence of Section 2.4 in
their entirety.
IV. REGISTRATION RIGHTS AGREEMENT
Subject to the terms and conditions set forth herein, the Registration
Rights Agreement is hereby amended by deleting the definition of "Registrable
Shares" in its entirety and replacing it with the following:
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"Registrable Shares shall mean, with respect to each Investor (or its
Permitted Transferee), (i) any or all of the shares of Common Stock issued upon
exercise of those certain warrants issued by the Company to such Investor on the
date hereof, and (ii) the 10,000 shares of Common Stock issued pursuant to that
certain Agreement, dated as of September 18, 1998, by and among the Company and
the Purchasers.
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchasers on the
date hereof and on the date (the "Closing Date") that all of the conditions set
forth this Section VII of this Agreement are satisfied (the "Closing") as
follows:
1. ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER. The Company is a
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Delaware, and it has the requisite power and authority
(corporate and other) to own and hold its properties and assets, and to carry on
its business as conducted or proposed to be conducted. The Company has requisite
power and authority to execute, deliver and perform this Agreement and to sell,
issue, and deliver the Shares to the Purchasers. The Company is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification, except where the failure to so qualify
would not materially adversely affect the operations or financial condition of
the Company
2. AUTHORIZATION OF AGREEMENTS, ETC.
(a)(i) Each of (i) the execution, delivery and performance by the
Company of this Agreement and (ii) the issuance, sale, and delivery of the
Shares to the Purchasers in accordance with the terms hereof have been duly
authorized by the board of directors and stockholders of the Company, as
necessary, and will not (with due notice or lapse of time or both) violate any
provision of law, rule, or regulation, any order of any court or other agency of
government, the Certificate of Incorporation of the Company or the By-Laws of
the Company, each as amended to date and as of the date hereof, or any provision
of any indenture, mortgage, note, deed of trust, agreement, or other instrument
to which the Company or any of its properties or assets is bound, or conflict
with, result in a breach of, or constitute (with due notice or lapse of time or
both) a default under the Certificate of Incorporation or By-Laws of the
Company, each as amended to date and as of the date hereof, or any such
indenture, mortgage, note, deed of trust, agreement, or other instrument, or
result in the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Company.
(b) The issuance, sale and delivery of the Shares in accordance with
the terms hereof have been duly authorized by the board of directors and
stockholders, as necessary, and, when issued in accordance with this Agreement,
the Shares shall be validly issued, fully paid, and nonassessable. The issuance,
sale, and delivery of the
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Shares are not subject to any unwaived preemptive right of any stockholder of
the Company or to any right of first refusal or other right in favor of any
person.
3. VALIDITY. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid, and binding obligation of the Company,
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium, or other similar laws affecting the enforcement of
creditors, rights generally and except as the availability of equitable remedies
may be limited by general principles of equity.
4. PRIVATE OFFERING. No form of general solicitation or general
advertising, including; but not limited to, advertisements, articles, notices or
other communications, published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising, was used
by the Company or any of its Subsidiaries or any of the Company's or such
Subsidiary's representatives, or, to the knowledge of the Company, any other
Person acting on behalf of the Company or any or its Subsidiaries, in connection
with the offering of the Shares being offered under this Agreement. During the
six months prior to the Closing, neither the Company, any of its Subsidiaries
nor any Person acting on the Company's or such Subsidiary's behalf has directly
or indirectly offered any Shares, or any part thereof or any other similar
securities, for sale to, or sold or solicited any offer to buy any of the same
from, or otherwise approached or negotiated in respect thereof with any Person
or Persons other than the Purchasers and other investors who the Company
reasonably believed had such knowledge and experience in financial and business
matters that they were capable of evaluating the merits and risks of purchasing
the Shares. The Company further represents to the Purchasers that, assuming the
accuracy of the representations of the Purchasers as set forth in Section V
hereof, neither the Company, any of its Subsidiaries nor any Person acting on
the Company's or such Subsidiary's behalf has taken or will take any action
which would subject the issue and sale of the Shares to the provisions of
Section 5 of the Securities Act, except as contemplated by the Registration
Rights Agreement. The Company has not sold the Shares to anyone other than the
Purchasers designated in this Agreement.
5. ABSENCE OF CERTAIN EVENTS. Other than in connection with the Stock
Purchase Agreement, no event has occurred which would require the adjustment of
the Exercise Price (as defined in the Warrant Agreement) pursuant to Article III
of the Warrant Agreement or would require the Company to provide notice pursuant
to Section 3.7 of the Warrant Agreement.
DEFINED TERMS. All capitalized terms used in Sections V.4 and V.5 not
defined herein shall have the meanings set forth in the Securities Purchase
Agreement.
VI. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
The Purchaser represents and warrants to the Company on the date hereof
and on the Closing Date, that:
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1. ACCREDITED INVESTOR: AUTHORIZATION, ETC. Each Purchaser is an
"accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act of 1933, as amended, has the power and authority to enter into
and perform this Agreement and to purchase the Shares.
2. INVESTMENT KNOWLEDGE. Each Purchaser has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the risks and merits of its investment in the Company and is capable of bearing
the economic risks of such investment, including a complete loss of its
investment.
3. OPPORTUNITY TO DISCUSS. Each Purchaser has had an opportunity to
discuss the business, management, and financial affairs of the Company with the
Company's representatives.
4. INVESTMENT INTENT. The Shares are being acquired for the Purchaser's
own account for the purpose of investment and not with a view to or for resale
in connection with any distribution thereof or interest therein.
VII. CONDITIONS TO CLOSING.
1. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASERS.
The obligations of the Purchasers to (i) purchase the Shares, (ii) approve and
agree to issuance by the Company of the Series D Preferred Shares to Nordstrom,
and (iii) amend the Warrant Agreement and (iv) amend the Registration Rights
Agreement hereunder are subject to the satisfaction or waiver by the Purchasers
of the following conditions prior to or contemporaneously with the Closing,
unless otherwise indicated:
(a) the representations and warranties made by the Company in this
Agreement (except for such representations and warranties as are limited by
their terms to an earlier specified date (which shall be true as of such date))
shall be true and correct in all material respects at and as of the Closing
Date; and the Company shall have complied in all material respects with the
agreements hereunder required to be performed by it at or prior to the Closing;
(b) Nordstrom shall have purchased the Series D Preferred Shares
pursuant to the Stock Purchase Agreement; and
(c) the Company shall have paid the Redemption Price (as defined in the
Securities Purchase Agreement) for all Senior Discount Notes held by Purchasers.
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2. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY
The obligations of the Company to (i) issue and sell the Shares (ii)
amend the Warrant Agreement and (iii) amend the Registration Rights Agreement
pursuant to this Agreement are subject to the satisfaction or waiver by the
Company of the condition that contemporaneously with the Closing the
representations and warranties made by the Purchasers in this Agreement (except
for such representations and warranties as are limited by their terms to an
earlier specified date (which shall be true as of such date)) shall be true and
correct in all material respects at and as of the Closing Date; and the
Purchasers shall have complied in all material respects with the agreements
hereunder required to be performed by it at or prior to the Closing.
VIII. GENERAL PROVISIONS.
1. RATIFICATION.
Except to the extent amended by this Agreement, all of the terms,
conditions and covenants of the Securities Purchase Agreement and the Warrant
Agreement are hereby ratified and confirmed and shall remain in full force and
effect.
2. ENTIRE AGREEMENT.
The Securities Purchase Agreement, the Warrant Agreement and this
Agreement, together with the other writings referred to therein and herein
and/or delivered pursuant thereto and/or hereto, contain the entire agreement
among the parties with respect to the subject matter thereof and hereof and
shall be read and construed together as a single agreement.
3. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
4. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to be
performed entirely within the state without regard to principles of conflicts of
law.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the day and year first above written.
STREAMLINE, INC.
By: /s/ Xxxxx x. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Vice President Operations and
Assistant Secretary
DDJ CANADIAN HIGH YIELD FUND
By: DDJ CAPITAL MANAGEMENT, LLC, its attorney-in-fact
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Member
MELLON BANK, N.A., solely in its capacity as Trustee
for General Motors Employees Domestic Group Pension
Trust as directed by DDJ Capital Management, LLC, and
not in its individual capacity
By: /s/ Xxxxxxxxxx Xxxx
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Xxxxxxxxxx Xxxx
Authorized Signatory
Agreement to Sections II, III, IV and VIII as
registered holder of Senior Discount Notes
beneficially owned by DDJ Canadian High Yield Fund
HARE & CO.
X/X XXX XXXX XX XXX XXXX
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Assistant Treasurer
SCHEDULE 1
CASH
PURCHASER NOMINEE NO. SHARES PAYMENT
--------- ------- ---------- -------
DDJ CANADIAN HIGH YIELD FUND HARE & CO.C/O THE BANK OF NEW YORK 2,857 $28.57
MELLON BANK, N.A., solely in its capacity MELLON BANK, N.A., solely in its 7,143 $71.43
as Trustee for General Motors Employees capacity as Trustee for General Motors
Domestic Group Pension Trust as directed by Employees Domestic Group Pension Trust
DDJ Capital Management, LLC, and not in its as directed by DDJ Capital Management,
individual capacity LLC, and not in its individual capacity
