Exhibit 10.13
WARRANT AGREEMENT
BY AND BETWEEN
STREAMLINE, INC.
AND
THE PURCHASERS NAMED HEREIN
DATED AS OF APRIL 15, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I. WARRANT CERTIFICATES....................................................................1
Section 1.1. FORMS OF WARRANT CERTIFICATES.................................................1
Section 1.2. EXECUTION OF WARRANT CERTIFICATES.............................................1
Section 1.3. REGISTRATION OF WARRANT CERTIFICATES..........................................2
Section 1.4. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.................................2
Section 1.5. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATE......................2
Section 1.6. CANCELLATION OF WARRANT CERTIFICATES..........................................3
ARTICLE II. WARRANT EXERCISE PRICE, VESTING AND EXERCISE OF WARRANTS...............................3
Section 2.1. EXERCISE PRICE................................................................3
Section 2.2. VESTING.......................................................................3
Section 2.3. REGISTRATION OF WARRANTS AND WARRANT SHARE....................................5
Section 2.4. PROCEDURE FOR EXERCISE OF WARRANTS............................................5
Section 2.5. ISSUANCE OF COMMON STOCK......................................................7
Section 2.6. CERTIFICATES FOR UNEXERCISED WARRANTS.........................................8
Section 2.7. RESERVATION OF SHARES.........................................................8
Section 2.8. NO IMPAIRMENT.................................................................8
ARTICLE III. ADJUSTMENTS AND NOTICE PROVISIONS.....................................................8
Section 3.1. ADJUSTMENT OF EXERCISE PRICE..................................................9
Section 3.2. SALES OF CERTAIN SECURITIES...................................................11
Section 3.3. NO ADJUSTMENTS TO EXERCISE PRICE..............................................12
Section 3.4. ADJUSTMENT OF NUMBER OF SHARES................................................12
Section 3.5. REORGANIZATIONS...............................................................13
Section 3.6. VERIFICATION OF COMPUTATIONS..................................................13
Section 3.7. NOTICE OF CERTAIN ACTIONS.....................................................14
Section 3.8. CERTIFICATE OF ADJUSTMENTS....................................................14
Section 3.9. WARRANT CERTIFICATE AMENDMENTS................................................15
Section 3.10. FRACTIONAL SHARES............................................................15
ARTICLE IV. MISCELLANEOUS............................................................................15
Section 4.1. PAYMENT OF TAXES AND CHARGES..................................................15
Section 4.2. CHANGES TO AGREEMENT..........................................................16
Section 4.3. ASSIGNMENT....................................................................16
Section 4.4. SUCCESSOR TO COMPANY..........................................................16
Section 4.5. REPORTS.......................................................................16
Section 4.6. NOTICES.......................................................................18
Section 4.7. DEFECTS IN NOTICE.............................................................19
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Section 4.8. GOVERNING LAW.................................................................19
Section 4.9. STANDING......................................................................19
Section 4.10. HEADINGS......................................................................19
Section 4.11. COUNTERPARTS..................................................................19
Section 4.12. AVAILABILITY OF THE AGREEMENT.................................................19
Section 4.13. ENTIRE AGREEMENT..............................................................20
WARRANT AGREEMENT
THIS WARRANT AGREEMENT, dated as of April 15, 1998, is entered into by
and between Streamline, Inc., a Delaware corporation (the "Company"), and the
undersigned purchasers (the "Purchasers").
WITNESSETH:
WHEREAS, the Company proposes to sell pursuant to a Securities Purchase
Agreement, dated as of April 15, 1998 (the "Securities Purchase Agreement"), by
and between the Company and the Purchasers, units consisting of Senior Discount
Notes in the aggregate principal amount of $7,770,000 (as defined in the
Securities Purchase Agreement) and warrants (each, a "Warrant," and
collectively, the "Warrants") to purchase up to an aggregate of 850,000 shares
(subject to adjustment and vesting as set forth herein) of the common stock, par
value $.01 per share, of the Company (the "Common Stock") (the Common Stock
issuable upon exercise of the Warrants being referred to herein as the "Warrant
Shares");
NOW, THEREFORE, in consideration of the premises and of the mutual
agree herein contained, the parties hereto agree as follows:
ARTICLE I.
WARRANT CERTIFICATES
SECTION 1.1. FORMS OF WARRANT CERTIFICATES. The warrant certificates
(the "Warrant Certificates") shall be issued in registered form only and,
together with the form of the election to purchase (the "Election to Purchase"),
and assignment (the "Assignment") to be attached thereto, shall be substantially
in the form of EXHIBIT A attached hereto and, in addition, may have such
letters, numbers or other marks of identification or designation and such
legends, summaries, or endorsements stamped, printed, lithographed or engraved
thereon as the Company may deem appropriate and as art not inconsistent with the
provisions of this Agreement, or as, in any particular case, may be required in
the opinion of counsel for the Company, to comply with any law or with any rule
or regulation of any regulatory authority or agency, or to conform to customary
usage.
SECTION 1.2. EXECUTION OF WARRANT CERTIFICATES. The Warrant
Certificates shall be executed on behalf of the Company by its Chief Executive
Officer or any Vice President and attested to by its Secretary or Assistant
Secretary, either manually or by facsimile signature printed thereon. In case
any authorized officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be an officer of the Company either before or after
delivery thereof by the Company to any Purchaser, the signature of such person
on such Warrant Certificates shall be
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valid nevertheless and such Warrant Certificates may be issued and delivered to
those persons entitled to receive the Warrants represented thereby with the same
force and effect as though the person who signed such Warrant Certificates had
not ceased to be an officer of the Company.
SECTION 1.3. REGISTRATION OF WARRANT CERTIFICATES. The Company shall
number and register the Warrant Certificates in a register as they are needed.
The Company may deem and treat the registered holder(s) of the Warrant
Certificates (the "Holders") as the absolute owner(s) thereof for all purposes.
SECTION 1.4. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. The
Warrants (and any Warrant Shares issued upon exercise of the Warrants) shall
bear such restrictive legend or legends as may be required by the Securities
Purchase Agreement and as may be required by law and shall be transferable only
in accordance with the terms of this Agreement and the Securities Purchase
Agreement.
The Company may from time to time register the transfer of any
outstanding Warrant Certificates in a warrant register to be maintained by the
Company upon surrender thereof accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company duly executed by the
Holder or Holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee(s).
Warrant Certificates may be exchanged at the option of the Holder(s)
thereof, when surrendered to the Company at the address set forth in Section 4.6
hereof for another Warrant Certificate or Warrant Certificates of like tenor and
representing in the aggregate a like number of Warrant Shares and Base Amount
(as defined in Section 2.2 hereof): PROVIDED that the Company shall not be
required to issue any Warrant Certificate representing any fractional Warrant
Shares. The number of Warrant Shares represented by a Warrant issued by the
Company upon the exchange or transfer of a Warrant shall be equal to the sum of
(i) the number of Warrant Shares with respect to which such Warrant is
exercisable on the date of such transfer or exchange, plus (ii) the number of
Warrant shares with respect to which such Warrant could in the future become
exercisable pursuant to Section 2.2 hereof (without regard to any Partial
Expiration that has not occurred as of the date of such transfer or exchange).
SECTION 1.5. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATE.
If any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company shall issue, execute and deliver, in exchange and
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substitution for and upon cancellation of a mutilated Warrant Certificate, or in
lieu of or in substitution for a lost, stolen or destroyed Warrant Certificate,
a new Warrant Certificate representing an equivalent number of Warrant Shares
and Base Amount (as defined in Section 2.2 hereof). If required by the Company,
the Holder of the mutilated, lost, stolen or destroyed Warrant Certificate must
provide indemnity sufficient to protect the Company from any loss which it may
suffer if the Warrant Certificate is replaced. Any such new Warrant Certificate
shall constitute an original contractual obligation of the Company, whether or
not the allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall
be at any time enforceable by anyone.
SECTION 1.6. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant
Certificate surrendered upon the exercise of Warrants or for exchange or
transfer, or purchased or otherwise acquired by the Company, shall be canceled
and shall not be reissued by the Company; and, except as provided in Section 2.6
hereof in case of the exercise of less than all of the Warrant Shares evidenced
by a Warrant Certificate or in Section 1.4 in an exchange or transfer, no
Warrant Certificate shall be issued hereunder in lieu of such canceled Warrant
Certificate. Any Warrant Certificate so canceled shall be destroyed by the
Company.
ARTICLE II.
WARRANT EXERCISE PRICE, VESTING AND EXERCISE OF WARRANTS
SECTION 2.1. EXERCISE PRICE. Each Warrant Certificate shall, when
signed by the Chief Executive Officer or any Vice President and attested to by
the Secretary or Assistant Secretary of the Company, entitle the Holder thereof
to purchase from the Company, subject to the terms and conditions of this
Agreement, the number of fully paid and nonassessable Warrant Shares evidenced
thereby (to the extent that (i) the Warrant Shares subject to such Warrant
Certificate have vested pursuant to Section 2.2 hereof, and (ii) the Warrant
Shares subject to such Warrant Certificate have not expired pursuant to a
Partial Expiration (as defined in Section 2.4 hereof)) at a purchase price of
$3.50 per share (the "Initial Exercise Price") or such adjusted number of
Warrant Shares at such adjusted purchase price as may be established from time
to time pursuant to the provisions of Article III hereof, payable in full in
accordance with Section 2.4 hereof, at the time of exercise of the Warrant.
Except as the context otherwise requires, the term "Exercise Price" as used in
this Agreement shall mean the purchase price of one share of Common Stock,
reflecting all appropriate adjustments made in accordance with the provisions of
Article III hereof.
SECTION 2.2. VESTING. Notwithstanding anything in this Agreement or in
any Warrant Certificate to the contrary, only those Warrant Shares that have
become vested pursuant to the provisions of this Section 2.2 may be
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acquired or purchased upon exercise of Warrants. Warrant Shares shall vest in
the manner and at the times specified in this Section 2.2. With respect to each
Warrant Certificate, the "Base Amount" shall initially be the number of Warrant
Shares represented by such Warrant Certificate on the date hereof, which Base
Amount shall be adjusted pursuant to Section 3.4 hereof. In the case of a
Warrant Certificate that is transferred in part, pursuant to Section 1.4 hereof
(a "Transferred Warrant Certificate"), the Base Amount of each new Warrant
Certificate issued to each transferee of a portion of the Transferred Warrant
Certificate shall be determined by the transferor of the Transferred Warrant
Certificate at the time of such transfer; provided that the aggregate Base
Amounts of all new Warrant Certificates issued as a result of the transfer of
the Transferred Warrant Certificate shall initially equal the Base Amount of the
Transferred Warrant Certificate (as adjusted pursuant to Section 3.4 hereof
through the date of such transfer), and shall be adjusted thereafter pursuant to
Section 3.4 and upon any subsequent transfers as described in this Section 2.2.
The Base Amount of a Warrant Certificate shall not be adjusted as a result of a
Partial Expiration (as defined in Section 2.4 hereof). The Warrant Certificates
are subject to the following vesting provisions:
(a) Each Warrant Certificate shall be immediately vested and
exercisable as to 52.9412% of the Base Amount (rounded up to the nearest whole
share) of such Warrant Certificate.
(b) On October 15, 1998, if the Company has not, between the date
hereof and October 14, 1998, completed one or more sales of the Company's
capital stock (other than debt convertible into capital stock of the Company) on
terms satisfactory to DDJ Capital Management, LLC ("DDJ"), in its reasonable
discretion, resulting in proceeds to the Company of at least $3.5 million, each
Warrant Certificate shall become vested and exercisable with respect to an
additional 11.7647% of the Base Amount (rounded up to the nearest whole share)
of such Warrant Certificate (as adjusted pursuant to Section 3.4 hereof through
October 15, 1998).
(c) On January 15, 1999, if the Company has not, between the date
hereof and January 14, 1999, completed one or more sales of the Company's
capital stock (other than debt convertible into capital stock of the Company)
(including without limitation sales pursuant to Section 2.2(b) hereof) on terms
satisfactory to DDJ, in its reasonable discretion, resulting in proceeds to the
Company of at least $7.0, million, each Warrant Certificate shall become vested
and exercisable with respect to an additional 11.7647% of the Base Amount
(rounded up to the nearest whole share) of such Warrant Certificate (as adjusted
pursuant to Section 3.4 hereof through January 15, 1999).
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(d) On April 1, 1999, and on the first day of each calendar quarter
thereafter through January 1, 2001, if the Company has not, prior to such date,
(i) completed an initial public offering of its securities resulting in proceeds
to the Company of at least $25,000,000 (a "Qualifying Offering") or (ii)
completed a sale of substantially all of the assets of the Company or a merger
pursuant to which merger the stockholders of the Company receive consideration,
in cash or securities of a class that is registered under Securities Exchange
Act of 1934, as amended, and listed on a national securities exchange, at least
equal in value to the value (as determined in good faith by the Company's Board
of Directors) of the Company's tangible and intangible assets (such sale or
merger, a "Qualifying Sale"), each Warrant Certificate shall become vested and
exercisable with respect to an additional 2.9412% of the Base Amount (rounded up
to the nearest whole share) of such Warrant Certificate on such date (as
adjusted pursuant to Section 3.4 hereof through the applicable vesting date). On
the date on which the Company completes a Qualifying Offering or a Qualifying
Sale, the Warrant Certificate shall become ineffective as to any unvested
Warrant Shares as of that date.
SECTION 2.3. REGISTRATION OF WARRANTS AND WARRANT SHARE. The Company
shall secure the effective registration of the Warrant Shares for resale under
the Securities Act upon the terms and subject to the conditions set forth in the
Registration Rights Agreement dated as of the date hereof (the "Registration
Rights Agreement") between the Company and the Purchasers. Promptly after a
registration statement under the Securities Act covering the Warrant Shares has
become effective, the Company shall cause notice thereof together with a copy of
the prospectus covering the Warrant Shares to be mailed to each registered
Holder.
SECTION 2.4. PROCEDURE FOR EXERCISE OF WARRANTS. Subject to the
provisions of Section 2.2 hereof, the Warrants may be exercised at any time
prior to the Expiration Date (as hereinafter defined) at the Exercise Price.
The Warrants shall expire at 5:00 p.m., New York City time, on the date that
is the earlier of (i) April 15, 2005, or (ii) the fifth anniversary of the
completion of an initial public offering of the Company's securities
resulting in proceeds to the Company of at least $25,000,000 (the "Expiration
Date"). Notwithstanding the foregoing sentence, each Warrant Certificate may
expire prior to the Expiration Date with respect to a portion of the Warrant
Shares represented by such Warrant Certificate as follows: (i) in the event
that all Senior Discount Notes (as defined in the Securities Purchase
Agreement) have been redeemed by the Company as of a date prior to the date
that is six months after the date hereof, each Warrant Certificate shall
expire and become unexercisable with respect to 5.8824% of the Base Amount of
such Warrant Certificate, and (ii) in the event that all Senior Discount
Notes have been redeemed by the Company as of a date that is on or after the
date that
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is six months after the date hereof and prior to the date that is nine months
after the date hereof, on the date that the last Senior Discount Note is
redeemed, each Warrant Certificate shall expire and become unexercisable with
respect to 2.9412% of the Base Amount of such Warrant Certificate. A partial
expiration of a Warrant Certificate pursuant to the preceding sentence shall
be called a "Partial Expiration." Warrant Shares as to which a Warrant
Certificate becomes unexercisable as a result of a Partial Expiration shall
be allocated pro rata among the Warrant Shares with respect to which such
Warrant Certificate is exercisable as of immediately prior to such Partial
Expiration and the Warrant Shares with respect to which such Warrant
Certificate may, in the future, vest pursuant to Section 2.2 hereof. The
Warrants may be exercised by surrendering the Warrant Certificates
representing such Warrants to the Company at its address set forth in Section
4.6 hereof, together with the Election to Purchase duly completed and
executed, accompanied by payment in full, as set forth below, to the Company
of the Exercise Price for each Warrant Share in respect of which such
Warrants are being exercised, and if the holder of any Warrants being
exercised is not the original holder of such Warrants and if requested by the
Company, a duly executed instrument or certificate, in form and substance
satisfactory to the Company, pursuant to which such Holder makes such
representations and warranties and provides such information as may
reasonably be required solely in order to confirm compliance with applicable
securities laws. Such Exercise Price shall be paid in full by (i) cash or a
certified check or a wire transfer in same day funds in an amount equal to
the Exercise Price multiplied by the number of Warrant Shares then being
purchased or (ii) delivery to the Company of Senior Discount Notes having a
value (which shall be the Accreted Value (as defined in the Securities
Purchase Agreement) of such Notes plus any accrued interest thereon through
the time of exercise). In the alternative, the Holder of a Warrant
Certificate may exercise its right to purchase some or all of the Warrant
Shares subject to such Warrant Certificate, on a net basis, such that,
without the exchange of any funds, such Holder receives that number of
Warrant Shares subscribed to pursuant to such Warrant Certificate less that
number of shares of Common Stock having an aggregate Fair Market Value at the
time of exercise equal to the aggregate Exercise Price that would otherwise
have been paid by such Holder for the number of Warrant Shares subscribed to
pursuant to such Warrant Certificate (hereinafter, a "Net Cashless Exercise").
As used herein: (a) the term "Fair Market Value," on a per share basis,
means the average of the daily Closing Prices (as hereinafter defined) of the
Common Stock for the five (5) consecutive Trading Days (as hereinafter defined)
ending the Trading Day immediately preceding the Date of Exercise (the "Fair
Market Value Measurement Period"); (b) the term "Date of Exercise" with respect
to any Warrant means the date on which such
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Warrant is exercised as provided herein; (c) the term "Closing Price" for any
date shall mean, the last sale price reported in THE WALL STREET JOURNAL regular
way or, in case no such reported sale takes place on such date, the average of
the last reported bid and asked prices regular way, in either case on the
principal national securities exchange on which the Common Stock is admitted to
trading or listed if that is the principal market for the Common Stock or, if
not listed or admitted to trading on any national securities exchange or if such
national securities exchange is not the principal market for the Common Stock,
the last sale price as reported on The Nasdaq Stock Market, Inc.'s National
Market ("Nasdaq") or its successor, if any, or if the Common Stock is not so
reported, the average of the reported bid and asked prices in the
over-the-counter market, as furnished by the National Quotation Bureau, Inc., or
if such firm is not then engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business and selected by the
Company or, if there is no such firm, as furnished by any member of the National
Association of Securities Dealers, Inc. ("NASD") selected by the Company or, if
the Common Stock is not quoted in the over-the-counter market, the fair value
thereof determined in good faith by the Company's Board of Directors as of a
date which is within 15 days of the date as of which the determination is to be
made; and (d) the term "Trading Days" with respect to the Common Stock means (i)
if the Common Stock is quoted on Nasdaq or any similar system of automated
dissemination of quotations of securities prices, days on which trades may be
made on such system or (ii) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business.
SECTION 2.5. ISSUANCE OF COMMON STOCK. As soon as practicable after the
Date of Exercise of any Warrants, the Company shall issue, or cause its transfer
agent to issue, a certificate or certificates for the number of full Warrant
Shares, registered in accordance with the instructions set forth in the Election
to Purchase, together with cash for fractional shares as provided in Section
3.10. All Warrant Shares issued upon the exercise of any Warrants shall (subject
to Section 11.12 of the Securities Purchase Agreement, this Warrant and
applicable securities laws) be validly authorized and issued, fully paid,
non-assessable, free of preemptive rights and (subject to Section 4.1 hereof)
free from all taxes, liens, charges and security interests in respect of the
issuance thereof. Each person in whose name any such certificate for Warrant
Shares is issued shall be deemed for all purposes to have become the holder of
record of the Common Stock represented thereby on the Date of Exercise of the
Warrants resulting in the issuance of such shares, irrespective of the date of
issuance or delivery of such certificate for Warrant Shares.
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SECTION 2.6. CERTIFICATES FOR UNEXERCISED WARRANTS. In the event that,
prior to the Expiration Date, a Warrant Certificate is exercised in respect of
fewer than all of the Warrant Shares issuable on such exercise a new Warrant
Certificate representing the remaining Warrant Shares shall be issued and
delivered pursuant to the provisions hereof; PROVIDED that the Company shall not
be required to issue any Warrant Certificate representing any fractional Warrant
Shares.
SECTION 2.7. RESERVATION OF SHARES. The Company shall at all times
reserve and keep available, free from preemptive rights, for issuance upon the
exercise of Warrants, the maximum number of its authorized but unissued shares
of Common Stock which may then be issuable upon the exercise in fall of all
outstanding Warrants. The Company shall from time to time take all action which
may be necessary or appropriate so that the Warrant Shares, immediately upon
their issuance following an exercise of Warrants, will be listed or quoted, as
the case may be, on the principal securities exchanges or markets within the
United States of America, if any, on which other shares of the Common Stock are
then listed.
SECTION 2.8. NO IMPAIRMENT. The Company shall not by any action,
including, without limitation, amending its certificate of incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of the Warrants,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holders against impairment. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any Warrant Shares receivable upon the exercise of the Warrants above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and non-assessable Warrant
Shares upon the exercise of any Warrant, and (c) use its best efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction thereof as may be necessary to enable the Company to perform
its obligations under the Warrants, provided that this clause (c) shall not
require the Company to register the issuance of Warrant Shares under the
Securities Act of 1933, as amended. Notwithstanding the foregoing paragraph, the
Company shall not be required to issue Warrant Shares upon the exercise of any
Warrant if such issuance would result in a violation by the Company of any
applicable law.
ARTICLE III.
ADJUSTMENTS AND NOTICE PROVISIONS
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SECTION 3.1. ADJUSTMENT OF EXERCISE PRICE. Subject to the provisions of
this Article III, the Exercise Price in effect from time to time shall be
subject to adjustment, as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on the outstanding shares of its Common Stock in shares of its
Common Stock, (ii) subdivide or reclassify the outstanding shares of its Common
Stock into a greater number of shares, or (iii) combine or reclassify the
outstanding shares of its Common Stock into a smaller number of shares, the
Exercise Price in effect immediately after the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding immediately before such dividend, distribution, subdivision,
combination or reclassification, and of which the denominator shall be the
number of shares of Common Stock outstanding immediately after such dividend,
distribution, subdivision, combination or reclassification. Any shares of Common
Stock of the Company issuable in payment of a dividend shall be deemed to have
been issued immediately prior to the record date for such dividend for purposes
of calculating the number of outstanding shares of Common Stock of the Company
under Subsection 3.1(c) hereof. Such adjustment shall be made successively
whenever any event specified above shall occur.
(b) In case the Company shall fix a record date for the issuance of
rights, options, warrants or convertible or exchangeable securities to all
holders of its Common Stock entitling them to subscribe for or purchase shares
of its Common Stock at a price per share less than the Exercise Price on such
record date, the Exercise Price shall be adjusted immediately thereafter so that
it shall equal the price determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of shares of Common Stock which the aggregate offering price of the total number
of shares of Common Stock so offered would purchase at the Exercise Price on
such record date, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever such a record date is fixed. To the extent
that any such rights, options, warrants or convertible or exchangeable
securities are not so issued or expire unexercised, the Exercise Price then in
effect shall be readjusted to the Exercise Price which would then be in effect
if such unissued or unexercised rights, options, warrants or convertible or
exchangeable securities had not been issuable.
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(c) In case the Company shall fix a record date for the making of a
distribution to all holders of shares of its Common Stock (i) of shares of any
class other than its Common Stock or (ii) of evidences of its indebtedness or
(iii) of assets (excluding cash dividends or distributions (other than
extraordinary cash dividends or distributions), and dividends or distributions
referred to in Subsection 3.1(a) hereof) or (iv) of rights, options, warrants or
convertible or exchangeable securities (excluding those rights, options,
warrants convertible or exchangeable securities referred to Subsection 3.1(b)
hereof), then in each such case the Exercise Price in effect immediately
thereafter shall be determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
total number of shares of Common Stock outstanding on such record date
multiplied by the Fair Market Value per share on such record date, less the
aggregate fair market value as determined in good faith by the Board of
Directors of the Company of said shares or evidences of indebtedness or assets
or rights, options, warrants or convertible or exchangeable securities so
distributed, and of which the denominator shall be the total number of shares of
Common Stock outstanding on such record date multiplied by such Fair Market
Value per share. Such adjustment shall be made successively whenever such a
record date is fixed; provided, however, that in no event shall the exercise
price be less than the par value per share of the Common Stock, which shall not
be greater than $.01 per share. In the event that such distribution is not so
made, or that such distribution, by its express terms, is intended to be made,
and is in fact made, to all holders of Warrant Shares upon exercise of their
respective Warrants, the Exercise Price then in effect shall be readjusted to
the Exercise Price which would then be in effect if such record date had not
been fixed.
(d) In the event that there shall have occurred prior to any date on
which a calculation of the Fair Market Value of the Common Stock is contemplated
by this Agreement (a "Computation Date") any event described in Subsection
3.1(a), 3.1(b) or 3.1(c) which shall have become effective with respect to
market transactions at any time (the "Market-Effect Date") within the Fair
Market Value Measurement Period, the Closing Price for each Trading Day
preceding the Market-Effect Date shall be adjusted, for purposes of calculating
such average, by multiplying such Closing Price by a fraction, of which the
numerator shall be the Exercise Price as in effect immediately prior to the
Computation Date and the denominator of which shall be the Exercise Price as in
effect immediately prior to the Market-Effect Date, it being understood that the
purpose of this proviso is to ensure that the effect of such event on the market
price of the Common Stock shall, as nearly as possible, be eliminated in order
that the distortion in the calculation of the Fair Market Value may be
minimized.
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SECTION 3.2. SALES OF CERTAIN SECURITIES. (a) In case the Company shall
on or after the date hereof issue or sell any shares of Common Stock or any
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase shares of Common Stock (excluding
Excluded Securities, as defined in Subsection 3.2(b) below) at a price per share
less than the Exercise Price on the date of such issuance or sale (which amount
shall be subject to adjustment in the event of a stock dividend, stock split or
subdivision, combination or reclassification of the Common Stock), then the
Exercise Price shall be adjusted immediately thereafter so that it shall equal
the price determined by multiplying the Exercise Price in effect immediately
prior to such issuance or sale by a fraction, of which the numerator shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance or sale plus the number of additional shares of Common Stock the
Aggregate Consideration Receivable (as defined in Subsection 3.2(d) below) would
purchase at the Exercise Price in effect immediately prior to such issuance or
sale (which amount shall be subject to adjustment in the event of a stock
dividend, stock split or subdivision, combination or reclassification of the
Common Stock), and of which the denominator shall be the number of shares of
Common Stock outstanding immediately prior to such issuance or sale plus the
number of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall be made successively whenever such issuance or
sale shall occur. To the extent that any such shares of Common Stock are not so
issued or sold or any such rights, options, warrants or convertible or
exchangeable securities are not so issued or sold or expire unexercised, the
Exercise Price then in effect shall be readjusted to the Exercise Price which
would then be in effect if such unissued or unsold shares of Common Stock and
such unissued or unsold or unexercised rights, options, warrants or convertible
or exchangeable securities had not been issuable.
(b) "Excluded Securities" means (i) stock options or warrants granted
or issued to officers, directors or employees of the Company, (ii) equity
securities issued or issuable upon exercise of any stock options or warrants
referred to in the foregoing clause (i), (iii) any and all securities issued or
issuable upon conversion, exercise or exchange of any convertible securities,
warrants or options that are outstanding on the date of this Agreement, (iv) any
and all securities sold by the Company pursuant to an underwritten public
offering registered under the Securities Act of 1933, as amended, (v) any and
all securities approved by the holders of a majority of the Warrant Shares
issuable upon exercise of the Warrants (assuming that all Warrants are fully
vested pursuant to Section 2.2 hereof), (vi) rights, options, warrants, or
convertible or exchangeable securities issued in any of the transactions
described in Subsections 3.1(b) or (c) or Section 3.5 hereof, (vii) shares of
Common Stock issuable upon the exercise of the Warrants, and
-12-
(viii) shares of Common Stock issuable upon exercise of rights, options or
warrants or conversion or exchange of convertible or exchangeable securities
issued or sold under circumstances causing an adjustment pursuant to this
Section 3.2.
(c) The price per share of Common Stock referred to in Subsection
3.2(a) above shall be determined by dividing (i) the Aggregate Consideration
Receivable in respect of such rights, options, warrants or convertible or
exchangeable securities, by (ii) the total number of shares of Common Stock
covered by such rights, options, warrants or convertible or exchangeable
securities.
(d) "Aggregate Consideration Receivable" means the aggregate amount
paid to the Company for such rights, options, warrants or convertible or
exchangeable securities, plus the aggregate consideration or premiums stated in
such rights, options, warrants or convertible or exchangeable securities to be
payable for the shares of Common Stock covered thereby.
(e) In case the Company shall sell and issue rights, options, warrants
or convertible or exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock, for a consideration consisting, in whole or
in part, of property other than cash or its equivalent, then in determining the
"price per share of Common Stock" referred to in Subsections 3.2(a) and (c)
above and the "Aggregate Consideration Receivable" referred to in Subsections
3.2(c) and (d) above, the Board of Directors of the Company shall determine, in
good faith and on a reasonable basis, the fair value of said property.
SECTION 3.3. NO ADJUSTMENTS TO EXERCISE PRICE. No adjustment in the
Exercise Price in accordance with the provisions of Subsection 3.1(a), (b) or
(c) or Subsection 3.2(a) hereof need be made unless such adjustment would amount
to a change of at least 0.5% in such Exercise Price, PROVIDED, HOWEVER, that the
amount by which any adjustment is not made by reason of the provisions of this
Section 3.3 shall be carried forward and taken into account at the time of any
subsequent adjustment in the Exercise Price.
SECTION 3.4. ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of
the Exercise Price pursuant to Subsection 3.1(a), (b), or (c) or Subsection
3.2(a) hereof, each Warrant shall thereupon evidence the right to purchase that
number of Warrant Shares and have that Base Amount (calculated to the nearest
hundredth of a share) obtained by multiplying the number of Warrant Shares
purchasable immediately prior to such adjustment upon exercise of the Warrant
and the Base Amount as of immediately prior to such adjustment, respectively, by
the Exercise Price in
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effect immediately prior to such adjustment and dividing the product so obtained
by the Exercise Price in effect immediately after such adjustment.
SECTION 3.5. REORGANIZATIONS. In case of any capital reorganization,
other than in the cases referred to in Section 3.1 hereof, or the consolidation
or merger of the Company with or into another corporation (other than a merger
or consolidation in which the Company is the continuing corporation and which
does not result in any reclassification of the outstanding shares of Common
Stock or the conversion of such outstanding shares of Common Stock into shares
of other stock or other securities or property), or the sale or conveyance of
the property of the Company as an entirety or substantially as an entirety
(collectively such actions being hereinafter referred to as "Reorganizations"),
there shall thereafter be deliverable upon exercise of any Warrant (in lieu of
the number of Warrant Shares theretofore deliverable) the number of shares of
stock or other securities or property to which a holder of the number of Warrant
Shares which would otherwise have been deliverable upon the exercise of such
Warrant would have been entitled upon such Reorganization if such Warrant had
been exercised as to such Warrant Shares immediately prior to such
Reorganization. In case of any Reorganization, appropriate adjustment, as
determined in good faith by the Board of Directors of the Company, shall be made
in the application of the provisions herein set forth with respect to the rights
and interests of Holders so that the provisions set forth herein shall
thereafter be applicable, as nearly as possible, in relation to any shares or
other property thereafter deliverable upon exercise of Warrants. Any such
adjustment shall be made by and set forth in a supplemental agreement prepared
by the Company or any successor thereto, between the Company and any successor
thereto, and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment. The Company shall not effect any such Reorganization,
unless upon or prior to the consummation thereof the successor corporation, or
if the Company shall be the surviving corporation in any such Reorganization and
is not the issuer of the shares of stock or other securities or property to be
delivered to holders of shares of the Common Stock outstanding at the effective
time thereof, then such issuer, shall assume by written instrument the
obligation to deliver to the Holder of any Warrant Certificate such shares of
stock, securities, cash or other property as such holder shall be entitled to
purchase in accordance with the foregoing provisions.
SECTION 3.6. VERIFICATION OF COMPUTATIONS. At the request of any
Holder, the Company shall select a firm of independent public accountants (which
may be its outside auditors), which selection may be changed from time to time,
to verify any computation and/or adjustment made in accordance with this Article
III. The certificate, report or other written statement of any such firm shall
be conclusive evidence of the correctness of any computation made under this
Article III. Promptly upon its receipt of
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such certificate, report or statement from such firm of independent public
accountants, the Company shall deliver a copy thereof to each Holder.
SECTION 3.7. NOTICE OF CERTAIN ACTIONS. In the event the Company shall
(a) declare any dividend payable in stock to the holders of its Common Stock or
make any other distribution in property other than cash to the holders of its
Common Stock, (b) offer to the holders of its Common Stock rights to subscribe
for or purchase any shares of any class of stock or any other rights or options,
or (c) effect any reclassification of its- Common Stock (other than a
reclassification involving merely the subdivision or combination of outstanding
shares of Common Stock) or any capital reorganization or any consolidation or
merger (other am a merger in which no distribution of securities or other
property is made to holders of Common Stock) or any sale, transfer or other
disposition of its property, assets and business substantially as an entirety,
or the liquidation, dissolution or winding up of the Company; then, in each such
case, the Company shall cause notice of such proposed action to be mailed to
each Holder at least thirty (30) days prior to such action; PROVIDED, HOWEVER,
that in the event that the Company provides public notice of such action
specifying the information set forth below at least fifteen (15) days prior to
such action, the Company shall be deemed to have satisfied its obligation to
provide notice pursuant to this Section 3.7. Such notice shall specify the date
on which the books of the Company shall close, or a record be taken, for
determining holders of Common Stock entitled to receive such stock dividend or
other distribution or such rights or options, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, dissolution, winding up or exchange shall take place
or commence, as the case may be, and the date as of which it is expected that
holders of record of Common Stock shall be entitled to receive securities or
other property deliverable upon such action, if any such date has been fixed.
Such notice shall be mailed in the case of any action covered by paragraph (a)
or (b) of this Section 3.7, at least ten (10) days prior to the record date for
determining holders of the Common Stock for purposes of receiving such payment
or offer, and in the case of any action covered by this paragraph (c), at least
ten (10) days prior to the earlier of the date upon which such action is to take
place or any record date to determine holders of Common Stock entitled to
receive such securities or other property.
SECTION 3.8. CERTIFICATE OF ADJUSTMENTS. Whenever any adjustment is to
be made pursuant to this Article III, the Company shall prepare a certificate
executed by the Chief Financial Officer of the Company, setting forth such
adjustments to be mailed to each Holder at least fifteen (15) days prior
thereto, such notice to include in reasonable detail (a) the events
precipitating the adjustment, (b) the computation of any adjustments, and (c)
the Exercise Price and the number of shares or the securities or other property
purchasable upon exercise of each Warrant after giving effect to
-15-
such adjustment. Such Certificate shall be accompanied by the accountant's
verification required by Section 3.6 hereof.
SECTION 3.9. WARRANT CERTIFICATE AMENDMENTS. Irrespective of any
adjustments pursuant to this Article III, Warrant Certificates theretofore or
thereafter issued need not be amended or replaced, but certificates thereafter
issued shall bear an appropriate legend or other notice of any adjustments;
PROVIDED the Company may, at its option, issue new Warrant Certificates
evidencing Warrants in such form as may be approved by its Board of Directors to
reflect any adjustment in the Exercise Price and number of Warrant Shares
purchasable under the Warrants.
SECTION 3.10. FRACTIONAL SHARES. The Company shall not be required upon
the exercise of any Warrant to issue fractional Warrant Shares which may result
from adjustments in accordance with this Article III to the Exercise Price or
number of Warrant Shares purchasable under each Warrant. If more than one
Warrant is exercised at one time by the same Holder, the number of full Warrant
Shares which shall be issuable upon the exercise thereof shall be computed based
on the aggregate number of Warrant Shares purchasable upon exercise of such
Warrants. With respect to any final fraction of a share called for upon the
exercise of any Warrant or Warrants, the Company shall pay an amount in cash to
the Holder of the Warrants in respect of such final fraction in an amount equal
to the Fair Market Value of a share of Common Stock as of the Date of Exercise
of such Warrants, multiplied by such fraction. All calculations under this
Section 3.10 shall be made to the nearest hundredth of a share.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. PAYMENT OF TAXES AND CHARGES. The Company will pay all
taxes (other than income taxes) and other government charges in connection with
the issuance or delivery of the Warrants and the initial issuance or delivery of
Warrant Shares upon the exercise of any Warrants and payment of the Exercise
Price. The Company shall not, however, be required to pay any additional
transfer taxes in connection with the subsequent transfer of Warrants or any
transfer involved in the issuance and delivery of Warrant Shares in a name other
than the name in which the Warrants to which such issuance relates were
registered, and, if any such tax would otherwise be payable by the Company, no
such issuance or delivery shall be made unless and until the person requesting
such issuance has paid to the Company the amount of any such tax, or it is
established to the reasonable satisfaction of the Company that any such tax has
been paid.
-16-
SECTION 4.2. CHANGES TO AGREEMENT. The Company, when authorized by its
Board of Directors, with the written consent of Holders of at least a majority
of the outstanding Warrants may amend or supplement this Agreement. The Company
may, without the consent or concurrence of any Holder, by supplemental agreement
or otherwise, make any changes or corrections in this Agreement that the Company
shall have been advised by counsel (a) are required to cure any ambiguity or to
correct any defective or inconsistent provision or clerical omission or mistake
or manifest error herein contained, (b) add to the covenants and agreements of
the Company in this Agreement such further covenants and agreements thereafter
to be observed, or (c) result in the surrender of any right or power reserved to
or conferred upon the Company in this Agreement, in each case which changes or
corrections do not and will not adversely affect, alter or change the rights,
privileges or immunities of the Holders.
SECTION 4.3. ASSIGNMENT. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Holders shall bind and
inure to the benefit of their respective successors and assigns, provided that
the Warrants are transferred or assigned pursuant to Section 1.3 hereof and
Section 11.13 of the Securities Purchase Agreement.
SECTION 4.4. SUCCESSOR TO COMPANY. In the event that the Company merges
or consolidates with or into any other corporation or sell or otherwise
transfers its property, assets and business substantially as an entirety to a
successor corporation, the Company shall use its best efforts to have such
successor corporation assume each and every covenant and condition of this
Agreement to be performed and observed by the Company, subject to Section 3.5
hereof.
SECTION 4.5. REPORTS.
FINANCIAL AND OTHER INFORMATION. The Company will deliver to each
Holder who, as of 5 days prior to the date on which document is to be delivered,
holds Warrants representing at least 100,000 Warrant Shares in the aggregate,
the following:
(a) as soon as available and in any event within 45 days after the end
of the first, second and third quarterly accounting periods in each fiscal year
of the Company, an unaudited balance sheet of the Company as at the end of such
period and the related unaudited statements of operations, stockholders' equity
and changes in cash flow of the Company for such period and (in the case of the
second and third quarterly periods) for the period from the beginning of the
current fiscal year to the end of such quarterly period, setting forth in each
case in comparative form the figures for the corresponding periods of the
previous fiscal year;
-17-
(b) as soon as available and in any event within 120 days after the end
of each fiscal year of the Company, provided that such information shall also be
provided in unaudited form within 90 days after the end of each fiscal year of
the Company, an audited balance sheet of the Company as at the end of such
fiscal year and the related audited statement of operations, stockholder's
equity and changes in cash flow of the Company for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and accompanied by the report thereon of a firm of
independent public accountants of recognized national standing selected by the
Company, which report (i) shall state that the examination by such accountants
in connection with such financial statements has been made in accordance with
generally accepted auditing standards and (ii) shall include the opinion of such
accountants that such financial statements (x) have been prepared in accordance
with generally accepted accounting principles consistent with those applied in
prior fiscal periods, except as otherwise specified in such opinion, and (y)
present fairly in all material respects the financial condition of the Company
at the dates of said financial statements and the results of the Company's
operations for the periods covered thereby;
(c) as soon as available and in any event within 30 days after the end
of each month, an unaudited balance sheet of the Company as at the end of such
month and the related unaudited statements of operations, stockholders' equity
and changes in cash flows of the Company for such month and for the current
fiscal year to the end of such month, setting forth in comparative form the
Company's projected financial statements for the corresponding periods for the
current fiscal year and setting forth net new subscribers to services provided;
(d) as soon as available, but in any event within 30 days after
commencement of each new fiscal year, a business plan and projected financial
statements for such fiscal year; and
(e) with reasonable promptness, (i) such other notices, information and
data with respect to the Company as the Company delivers to the holders of
Common Stock, including, promptly upon receipt thereof, any additional reports,
management letters or other detailed information concerning significant aspects
of the Company's operations or financial affairs given to the Company by its
independent accountants (and not otherwise contained in other materials provided
hereunder), and (ii) such other information and data as the Purchasers may from
time to time reasonably request.
Notwithstanding the foregoing, the Company's obligations to deliver the
information specified in clauses (c), (d) and (e)(ii) of this Section 4.5 shall
terminate once the Company becomes subject to the reporting requirements
-18-
of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (a
"Reporting Company"). In addition, once the Company becomes a Reporting Company,
the Company shall not be required to deliver the information specified in
clauses (a) and (b) to any Holder prior to the date on which such information is
filed with the Securities and Exchange Commission.
The foregoing financial statements shall be prepared on a consolidated basis if
the Company then has any subsidiaries. The financial statements delivered
pursuant to paragraphs (a) and (c) shall be accompanied by a certificate of the
chief financial officer or controller of the Company stating that such
statements have been prepared in accordance with generally accepted accounting
principles consistently applied (except as noted) and fairly present the
financial condition and results of operations of the Company at the date thereof
and for the periods covered thereby.
SECTION 4.6. NOTICES. Any notice or demand required by this Agreement
to be given or made by any Holder to or on the Company shall be sufficiently
given or made if sent by first-class or registered mail, postage prepaid,
addressed as follows:
Streamline, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer
With a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn:, Xxxxx X. Xxxxxxx, Esq.
Any notice or demand required by this Agreement to be given or made by the
Company to or on any Holder shall be sufficiently given or made if sent by
first-class or registered mail, postage prepaid, addressed to such Holder and
sent to the following address:
DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx Xxxxxxx, Esq.
With a copy to:
Xxxxxxx, Procter & Xxxx LLP
-00-
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx Xxxxxx, P.C.
Any notice or demand required by this Agreement to be given or made by the
Company to or on any Holder shall be sufficiently given or made, whether or not
such holder receives the notice, five (5) days after mailing, if sent by
first-class or registered mail, postage prepaid, addressed to such Holder at its
last address as shown on the books of the Company. Otherwise, such notice or
demand shall be deemed given when received by the party entitled thereto.
SECTION 4.7. DEFECTS IN NOTICE. Failure to file any certificate or
notice or to mail any notice, or any defect in any certificate or notice
pursuant to this Agreement shall not affect in any way the rights of any Holder
or the legality or validity of any adjustment made pursuant to Section 3.1, 3.2
or 3.4 hereof, or any transaction giving rise to any such adjustment, or the
legality or validity of any action taken or to be taken by the Company.
SECTION 4.8. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be governed by the laws of the Commonwealth of
Massachusetts without regard to principles of conflicts of laws thereof.
SECTION 4.9. STANDING. Nothing in this Agreement expressed and nothing
that may be implied from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than the
Company and the Holders of any right, remedy or claim under or by reason of this
Agreement or of any covenant, condition, stipulation, promise or agreement
contained herein; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company and its successors, and the Holders.
SECTION 4.10. HEADINGS. The descriptive headings of the articles and
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 4.11. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, and all of which together
shall constitute one and the same instrument.
SECTION 4.12. AVAILABILITY OF THE AGREEMENT. The Company shall keep
copies of this Agreement available for inspection by Holders during normal
business hours. Copies of this Agreement may be obtained upon
-20-
written request addressed to the Company at the address set forth in Section 4.6
hereof.
SECTION 4.13. ENTIRE AGREEMENT. This Agreement, including the Exhibits
referred to herein and the other writings specifically identified herein or
contemplated hereby, is complete, reflects the entire agreement of the parties
with respect to its subject matter, and supersedes all previous written or oral
negotiations, commitments and writings.
-21-
WARRANT AGREEMENT
COMPANY SIGNATURE PAGE
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by
the parties as of the day and year first above written.
STREAMLINE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. XxXxxxx
Chairman and Chief
Executive Officer
-22-
WARRANT AGREEMENT
PURCHASER SIGNATURE
Accepted and Agreed as of the date first written above.
DDJ Canadian High Yield Fund
By: DDJ Capital Management LLC,
as attorney-in-fact
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
Member
With a copy to: Notice Information:
Xxxxx Xxxxxxxxx Xxxxxxx, Esq. Xx. Xxx Xxxxxxx
DDJ Capital Management, LLC DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0 000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxxx, XX 00000 Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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
----------------------------------------
Xxxxxxxxxx Xxxx
Authorized Signatory
With a copy to: Notice Information:
Xxxxx Xxxxxxxxx Xxxxxxx, Esq. Xx. Xxx Xxxxxxx
DDJ Capital Management, LLC DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, Xxxxx 0 000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxxx, XX 00000 Xxxxxxxxx, Xxxxxxxxxxxxx 00000
-23-
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT TO THE SECURITIES OR "BLUE
SKY LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER
SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH ACT, OR (iii) ANY OTHER
EXEMPTION FROM REGISTRATION UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES, PROVIDED THAT, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE IS FURNISHED TO THE COMPANY THAT
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT IS AVAILABLE. ANY
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS CONTAINED IN A SECURITIES PURCHASE AGREEMENT AND A WARRANT
AGREEMENT DATED AS OF APRIL 15, 1998, AS AMENDED. FROM TIME TO TIME (THE
"SECURITIES PURCHASE AGREEMENT"), A COMPLETE AND CORRECT COPY OF THE FORM OF
WHICH WILL BE FURNISHED BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST
AND WITHOUT CHARGE.
No.
---------------
Certificate for ________Warrants
STREAMLINE, INC.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
THIS CERTIFIES that _______________________________, or its registered assigns
is the registered holder (the "Registered Holder") of Warrants set forth above,
of which____________ are vested on the date of issuance hereof, each of which
represents the right to purchase one fully paid and non-assessable share of
common stock, par value $.01 per share (the "Common Stock"), of Streamline,
Inc., a Delaware corporation (the "Company"), at the Exercise Price (as defined
in the Warrant Agreement) at the times specified, and in accordance with the
vesting schedule set forth in the Warrant Agreement, by surrendering this
Warrant Certificate, with the form of Election to Purchase attached hereto duly
executed and by paying in
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full the Exercise Price, and if the holder of any Warrants being exercised is
not the original holder of such Warrants and if requested by the Company, a duly
executed instrument or certificate, in form and substance satisfactory to the
Company, pursuant to which such Holder makes such representations and warranties
and provides such information as may reasonably be required solely in order to
confirm compliance with applicable securities, laws, Payment of the Exercise
Price shall be made as set forth in the Warrant Agreement (as hereinafter
defined). No Warrant may be exercised after 5:00 P.M., New York City time, on
the date that is the earlier of (i) the fifth anniversary of the completion of a
public offering by the Company raising at least $25,000,000 or (ii) April 15,
2005 (the "Expiration Date"). All Warrants evidenced hereby shall thereafter
become void, subject to the terms of the Warrant Agreement hereinafter referred
to.
Prior to the Expiration Date, subject to any applicable laws, rules or
regulations restricting transferability and to any restriction on
transferability that may appear on this Warrant Certificate and in accordance
with the terms of the Warrant Agreement and the Securities Purchase Agreement
hereinafter referred to, the Registered Holder shall be entitled to transfer
this Warrant Certificate, in whole or in part, upon surrender of this Warrant
Certificate at the principal office of the Company with the form of assignment
set forth hereon duly executed. Upon any such transfer, a new Warrant
Certificate or Warrant Certificates representing the same aggregate number of
Warrants to purchase the shares of the Common Stock will be issued in accordance
with instructions in the form of assignment.
Upon the exercise of less than all of the Warrants to purchase the
shares of the Common Stock evidenced by this Warrant Certificate, there shall be
issued to the Registered Holder a new Warrant Certificate in respect of the
Warrants not exercised.
Prior to the Expiration Date, the Registered Holder shall be entitled
to exchange this Warrant Certificate, with or without other Warrant
Certificates, for another Warrant Certificate or Warrant Certificates for the
same aggregate number of Warrants to purchase the shares of the Common Stock,
upon surrender of this Warrant Certificate at the principal office of the
Company.
Upon certain events provided for in the Warrant Agreement, the Exercise
Price and the number of shares of Common Stock issuable upon the exercise of
each Warrant are required to be adjusted.
-25-
No fractional shares will be issued upon the exercise of Warrants. As
to any final fraction of a share of Common Stock which the Registered Holder of
one or more Warrant Certificates, the rights under which are exercised in the
same transaction, would otherwise be entitled to purchase upon such exercise,
the Company shall pay the cash value thereof determined as provided in the
Warrant Agreement. No Warrant Certificate representing less than one Warrant
Share will be issued.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of April 15, 1998 (the "Warrant Agreement") by and
among the Company and the Purchasers (as defined in the Warrant Agreement) and
is subject to the terms and provisions contained in the Warrant Agreement. All
capitalized terms not defined herein shall have the meanings given such terms as
set forth in the Warrant Agreement.
This Warrant Certificate shall not entitle the Registered Holder to any
of the rights of a stockholder of the Company, including, without limitation,
the right to vote, to receive dividends and other distributions, or to attend or
receive any notice of meetings of stockholders or any other proceedings of the
Company.
The Base Amount of this Warrant (as defined in the Warrant Agreement)
is ___________ shares of Common Stock.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
/Seal/ STREAMLINE, INC.
By:
-------------------------------------
Name:
Title:
/Seal/ Attest:
By:
--------------------------------------
Name:
Title: Secretary
-26-
[Form of Assignment]
FOR VALUE RECEIVED, the undersigned hereby irrevocably sells, assigns
and transfers unto the Assignee named below all of the rights of the undersigned
represented by the within Warrant Certificate, with respect to the number of
Warrants to purchase the shares of the Common Stock set forth below:
NAME OF ASSIGNEE ADDRESS NO. OF WARRANT SHARE BASE AMOUNT
---------------- ------- -------------------- -----------
and does hereby irrevocably constitute and appoint __________________true and
lawful Attorney, to make such transfer on the books of Streamline, Inc.,
maintained for that purpose, with full power of substitution in the premises.
Dated: ,
------------------------------
----------------------
Signature
(Signature must conform
in all respects to name
of holder as specified
on the face of the
Warrant Certificate.)
-27-
[Form of Election To Purchase]
The undersigned hereby irrevocably elects to exercise _______ of the
Warrants represented by this Warrant Certificate and to purchase the shares of
Common Stock issuable upon the exercise of said Warrants, and requests that
certificates for such shares be issued and delivered as follows:
ISSUE TO:
---------------------------------------------------------------------
(NAME)
---------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
---------------------------------------------------------------------
(SOCIAL SECURITY OR OTHER IDENTIFICATION NUMBER)
DELIVER TO: -------------------------------------------------------------------
(NAME)
at ----------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
In full payment of the purchase price with respect to the exercise of
Warrants to purchase shares of the Common Stock, the undersigned:
hereby tenders payment of $_________ by cash, certified check,
cashier's check or money order payable in United States
currency to the order of the Company, or;
hereby delivers to the Company Senior Discount Notes (as
defined in the Securities Purchase Agreement) having a value
(which shall be the Accreted Value (as defined in the
Securities Purchase Agreement) of such Notes pus any accrued
interest thereon through the date hereof) of $_______________;
or
hereby makes a Net Cashless Exercise (as defined in the
Warrant Agreement).
If the number of Warrants to purchase the shares of the Common Stock
hereby exercised is less than the Warrants represented by this
-28-
Warrant Certificate, the undersigned requests that a new Warrant Certificate
representing the number of such full Warrants not exercised by issued and
delivered as follows:
ISSUE TO: ---------------------------------------------------------------------
(NAME)
-------------------------------------------------------------------------------
ADDRESS, INCLUDING ZIP CODE)
-------------------------------------------------------------------------------
(SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)
DELIVER TO --------------------------------------------------------------------
(NAME)
at ---------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE)
Date: ----------------------
----------------------
Signature
(Signature must conform
in all respects to name
of holder as specified
on the face of the
Warrant Certificate.)
PLEASE INSERT SOCIAL
SECURITY OR TAX I.D.
NUMBER HOLDER
----------------------
----------------------
