Exhibit 10.17
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
September 18, 1998, by and among Streamline, Inc., a Delaware corporation (the
"Company"), and Nordstrom, Inc., a Washington corporation (the "Investor").
PREAMBLE
WHEREAS, the Investor has purchased up to an aggregate of 228,570
shares (the "Shares") of the Company's Series D Preferred Stock, par value $1.00
per share ("Series D Preferred Stock"), pursuant to the terms of that certain
Stock Purchase Agreement, of even date herewith, by and among the Company and
the Investor (the "Stock Purchase Agreement");
WHEREAS, it is a condition precedent to the consummation by the
Investor of all of its obligations under the Stock Purchase Agreement that the
Company and the Investor enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. In addition to those terms defined elsewhere in this
Agreement, the following terms as used herein shall have the following meanings:
"AFFILIATE" shall mean, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common
control with such first-named Person. For the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"COMMISSION" shall mean the U.S. Securities and Exchange Commission.
"COMMON STOCK" shall mean the common stock, par value $0.01 per
share, of the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
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"PERMITTED TRANSFEREE" shall mean, with respect to the
Investor, any Person that purchases or otherwise acquires all or a
portion of the Shares of the Investor (any shares of Series D Preferred
Stock issued as or dividend thereon and/or shares of Common Stock
issued upon the conversion thereof).
"PERSON" shall mean an individual, partnership, corporation,
limited liability company, association, trust, joint venture,
unincorporated organization, and any government, governmental
department or agency or political subdivision thereof.
"REGISTRABLE SHARES" shall mean, with respect to the Investor
(or its Permitted Transferee), any or all of the shares of Common Stock
issued upon conversion of any or all of the Investor's (or Permitted
Transferee's) shares of Series D Preferred Stock, PROVIDED, HOWEVER,
that such securities shall cease to be Registrable Shares when the
holder of such Registrable shares would be entitled to sell all of such
securities within a three-month period pursuant to the provisions of
Rule 144.
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act and any successor or substitute rule, law or provision.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933,
as amended.
2. DEMAND REGISTRATION RIGHTS.
2.1. REGISTRATION UPON REQUEST. Subject to the provisions of Section
2.4 below, at any time or from time to time, holders of record of at least
thirty (30) percent of the Registrable Shares then outstanding may notify the
Company in writing that such holders desire for the Company to cause all or a
portion of the Registrable Shares to be registered under the Securities Act
pursuant to this Section 2.1; PROVIDED that the Registrable Shares to be so
registered by the Investor shall have an aggregate proposed sales price of at
least $2,000,000. Thereafter, the Company shall promptly give to each holder of
at least ten (10) percent of the Registrable Shares then outstanding written
notice of such demand for registration. Upon the written request of any such
holder given within ten days after the giving of any such notice by the Company,
the Company shall use its best efforts to cause to be included in such
registration the Registrable Shares of such holder, to the extent requested to
be registered. Thereafter, subject to the conditions, limitations and provisions
set forth below in Sections 2.3, 2.4 and 5, the Company shall promptly prepare
and file, and use its best efforts to prosecute to effectiveness, an appropriate
filing with the Commission of a registration statement covering all of those
Registrable Shares with respect to which registration under the Securities Act
has been requested by the requesting holders of Registrable Shares; PROVIDED
that, if the Company has been given a notice of the type specified in this
Section 2 or 4.1, the
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Company is not at such time continuing to pursue the registration referred to in
such notice. Subject to the provisions of Section 2.3 below, the Company may
include in any registration pursuant to this Section 2.1 additional shares of
Common Stock for sale for its own account or for the account of any other
Person.
2.2. SELECTION OF UNDERWRITERS. If a registration pursuant to Section
2.1 involves an underwritten offering, the underwriter or underwriters thereof
shall be selected, after consultation with the Company, by the Persons who own
the Registrable Shares being so registered, PROVIDED that such underwriter or
underwriters shall be acceptable to the Company. The Company covenants that it
shall not unreasonably withhold its acceptance of any such underwriter or
underwriters.
2.3. PRIORITY OF DEMAND REGISTRATIONS. If a registration pursuant to
Section 2.1 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration pursuant to
Section 2.1, and (ii) second, the other shares of Common Stock of the Company
proposed to be included in such registration, in accordance with the priorities,
if any, then existing among the Company and the holders of such other
securities.
2.4. LIMITATION ON REGISTRATIONS. The Company shall not be required to
effect more than two (2) registrations pursuant to Section 2.1.
2.5. LIMITATION ON REQUESTS. Notwithstanding anything in this Section 2
to the contrary, no Person may request a registration pursuant to Section 2.1
during (i) the 180-day period following the closing of the Company's initial
public offering, (ii) the 180-day period following the effective date of any
registration statement filed in connection with a registration pursuant to
Section 2.1 or 4.1 or (iii) the 90-day period following the effective date of
any registration statement filed in connection with a registration pursuant to
Section 3. For purposes of this Agreement, a registration shall be deemed to
have been effected by the Company if the registration statement relating thereto
has been declared effective by the Commission or if such registration statement,
after having been filed with the Commission, is, through no fault of the
Company, withdrawn, abandoned or otherwise not declared effective within sixty
(60) days of the filing thereof.
3. PIGGYBACK REGISTRATION RIGHTS.
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3.1. REGISTRATION. If at any time the Company proposes to register any
of its Common Stock under the Securities Act, whether for its own account or for
the account of any stockholder of the Company or pursuant to registration rights
granted to holders of securities of the Company (but excluding in all cases any
registrations pursuant to Sections 2 or 4 hereof or any registrations to be
effected on Forms S-4 or S-8 or any applicable successor Forms), the Company
shall, each such time, give to each holder of record of at least ten (10)
percent of the Registrable Shares then outstanding written notice of its intent
to do so. Upon the written request of any such holder given within ten days
after the giving of any such notice by the Company, the Company shall use its
best efforts to cause to be included in such registration the Registrable Shares
of such holder, to the extent requested to be registered, subject to Section
3.2; PROVIDED that (i) the number of Registrable Shares proposed to be sold by
each holder is equal to at least twenty-five (25) percent of the total number of
Registrable Shares held by such holder, and (ii) such holder agrees to sell
those of its Registrable Shares to be included in such registration in the same
manner and on the same terms and conditions as the other shares of Common Stock
which the Company purposes to register.
3.2. PRIORITY OF THE COMPANY SHARES. In connection with any offering
involving an underwriting of shares being issued by the Company or being sold
pursuant to any demand registration rights of any stockholder of the Company,
the Company shall not be required under Section 3.1 to include the Registrable
Shares of any Person requesting registration therein unless such Person accepts
and agrees to the terms of the underwriting as agreed upon between the Company
and/or the stockholder(s) exercising demand registration rights, as applicable,
and the underwriters selected by the Company and/or such stockholders, and then
only in such quantity as (without any reduction in the numbers of shares to be
sold for the account of the Company and any such stockholders) will not, in the
opinion of the underwriters, jeopardize the success of the offering by the
Company. If the total number of shares of Common Stock which all selling
stockholders of the Company, including the Persons requesting registration
pursuant to Section 3.1, request to be included in any offering exceeds the
number of shares which the underwriters believe to be compatible with the
success of the offering, the Company shall only be required to include in the
offering so many of shares of stockholders (including the Persons) exercising
piggyback registration rights hereunder, pro rata among such Persons and other
stockholders exercising piggyback registration rights on the basis of the number
of shares requested to be registered in such registration, as the underwriters
believe will not (without any reduction in the number of shares to be sold for
the account of the Company and any stockholder(s) exercising demand registration
rights) jeopardize the success of the offering.
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4. FORM S-3 REGISTRATION.
4.1. REGISTRATION UPON REQUEST. In the event that the Company shall
receive from the holders of record of at least twenty (20) percent of the
Registrable Shares then outstanding a written request or requests that the
Company effect a registration on Form S-3 (or any applicable successor Form)
with respect to all or a part of the Registrable Shares owned by such holders,
then the Company will promptly use its best efforts to effect such registration
of all or such portion of such holders' Registrable Shares as are specified in
such request; PROVIDED that, if the Company has been given a notice of the type
specified in Section 2.1, 3 or this Section 4.1, the Company is not at such time
continuing to pursue the registration referred to in such notice. Promptly after
receipt by the Company of a notice requesting registration pursuant to this
Section 4.1, the Company shall give to such holders written notice of such
request for registration. Upon the written request of any such holder given
within ten days after the giving of any such notice by the Company, the Company
shall use its best efforts to cause to be included in such registration the
Registrable Shares of such holders, to the extent requested to be registered.
Subject to Section 4.3, the Company may include in any registration pursuant to
this Section 4.1 additional shares of Common Stock for sale for its own account
or for the account of any other Person. No registration under this Section 4.1
shall be underwritten unless the Company shall otherwise elect in its sole and
absolute discretion.
4.2. SELECTION OF UNDERWRITERS. If a registration pursuant to Section
4.1 involves an underwritten offering, the underwriter or underwriters thereof
shall be selected by the Company.
4.3. PRIORITY OF DEMAND REGISTRATION. If a registration pursuant to
Section 4.1 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration by the Persons
requesting registration pursuant to Section 4.1 and (ii) second, the other
shares of Common Stock of the Company proposed to be included in such
registration, in accordance with the priorities, if any, then existing among the
Company and the holders of such other securities.
4.4. LIMITATION ON REGISTRATIONS. Notwithstanding anything to the
contrary in this Section 4, the Company shall not be required to effect any
registration pursuant to Section 4.1 unless the Registrable Shares to be so
registered shall have an aggregate proposed sales price of at least $1,000,000.
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4.5. LIMITATION ON REQUESTS. Notwithstanding anything in this Section
4.5 to the contrary, no holder of Registrable Shares may request a registration
pursuant to Section 4.1 during (i) the 180-day period following the closing of
the Company's initial public offering, (ii) the 180-day period following the
effective date of any registration statement filed in connection with a
registration pursuant to Section 2.1 or 4.1 or (iii) the 90-day period following
the effective date of any registration statement filed in connection with a
registration pursuant to Section 3.
5. DEFERRAL. Notwithstanding anything to the contrary contained in this
Agreement, the Company's obligation to file a registration statement pursuant to
Xxxxxxx 0, 0 xx 0 xxxxx xx deferred for a period not to exceed 90 days in any
12-month period if the Company, in the good faith judgment of its Board of
Directors, reasonably believes that the filing thereof at the time requested
would materially adversely affect a pending or proposed public offering of
Common Stock, or an acquisition, merger, recapitalization, consolidation,
reorganization or similar transaction, or any negotiations, discussions or
pending proposals with respect thereto.
6. ADDITIONAL OBLIGATIONS OF THE COMPANY.
Whenever the Company is required under Section 2, 3 or 4 to use its
best efforts to effect the registration of any of the Registrable Shares, the
Company shall promptly:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its best
efforts to cause such registration statement to become and remain
effective; PROVIDED, however that the Company shall in no event be
obligated to cause any such registration to remain effective for more
than 90 days;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement;
(c) Furnish to each holder of Registrable Shares being so
registered such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such holder may reasonably
request in order to facilitate the disposition of such Registrable
Shares;
(d) Use its best efforts to register and qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as
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shall be reasonably appropriate in the opinion of the Company and the
managing underwriters, PROVIDED that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions, and PROVIDED FURTHER that (anything in Section
8 to the contrary notwithstanding with respect to the bearing of
expenses) if any jurisdiction in which the securities shall be
qualified shall require that expenses incurred in connection with the
qualification therein of the securities be borne by selling
shareholders, then such shareholders shall, to the extent required by
such jurisdiction, pay its PRO RATA share of selling expenses;
(e) Immediately notify the holders of such Registrable Shares,
at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event of
which the Company has knowledge as a result of which the prospectus
contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
and, at the request of any such holder, promptly prepare and furnish to
it a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that such prospectus will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made; PROVIDED, that after such notification and until
such supplement or amendment has been so delivered, no such holder will
deliver or otherwise use the original prospectus;
(f) Use its best efforts to cause the Company's Common Stock
and such Registrable Shares to be listed for trading on The New York
Stock Exchange or The American Stock Exchange or for inclusion in the
automated quotation system of The Nasdaq Stock Market, PROVIDED that
the Company meets the applicable criteria for original listing with
respect thereto; and
(g) Enter into such customary agreements (including, without
limitation, an underwriting agreement and an agreement engaging a
transfer agent and registrar for the Company's Common Stock) and take
all such other action in connection therewith (including, without
limitation, arranging for the provision of legal opinions, "comfort
letters" and other documents by appropriate third parties) as any
holder of such Registrable Shares may reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares.
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7. FURNISH INFORMATION.
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that any holder of Registrable Shares
requesting registration thereof shall furnish to the Company such information
regarding such holder, the Registrable Shares held by such holder, the proposed
plan of distribution of such Registrable Shares, and any other information as
the Company shall reasonably request and as shall be required in order to effect
any such registration by the Company.
8. EXPENSES.
All expenses incurred in connection with a registration pursuant to
this Agreement (excluding underwriting commissions and discounts and counsel
fees of any selling Investors), including without limitation all registration
and qualification fees, printing costs, and fees and disbursements of counsel
for the Company, shall be borne by the Company; PROVIDED, HOWEVER, that the
Company shall not be required to pay for blue sky registration or qualification
expenses in connection with states in which the Company is not registering or
qualifying its original issue shares or Registrable Shares that are being
registered upon the exercise of demand registration rights hereunder; and
PROVIDED, FURTHER, that the holders of Registrable Shares participating as
selling shareholders in the second or third registration pursuant to Section 4.1
shall pay all expenses incurred in connection with such registration(s) on a pro
rata basis in accordance with the number of Registrable Shares which are
included in such registration(s) by such holders thereunder.
9. INDEMNIFICATION.
9.1. INDEMNIFICATION. In the event that any Registrable Shares are
included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the holder thereof, any underwriter (as defined in the
Securities Act) for the Company, and each officer and director of such
holder or such underwriter and each Person, if any, who controls such
holder or such underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several,
to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue or alleged
untrue statement of any material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to
make the
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statements therein not misleading; and will reimburse such holder, such
underwriter or such officer, director or controlling Person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in
this Section 9.1(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, damage, liability or action to the extent that
it primarily arises out of or is based upon an untrue statement or
alleged untrue statement or omission made in connection with such
registration statement, preliminary prospectus, final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by such holder, any underwriter for such holder or
controlling Person with respect to such holder.
(b) To the extent permitted by law, such holder will indemnify
and hold harmless the Company, each of its directors, each of its
officers who have signed such registration statement, each Person, if
any, who controls the Company within the meaning of the Securities Act,
and any underwriter for the Company (within the meaning of the
Securities Act) against any losses, claims, damages or liabilities to
which the Company or any such director, officer, controlling Person, or
underwriter may become subject to, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any untrue
or alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus contained
therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary
prospectus, final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by
such holder expressly for use in connection with such registration; and
such holder will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling
Person, or underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the indemnity agreement contained in this Section 9.1(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent
of such holder against
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which the request for indemnity is being made (which consent shall not
be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 9.1 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 9.1, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other
indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the parties. The
failure to notify an indemnifying party promptly of the commencement of
any such action, if prejudicial to his ability to defend such action,
shall relieve such indemnifying party of any liability to the
indemnified party under this Section 9.1 only if and to the extent such
failure to promptly notify was prejudicial to its ability to defend
such action, and the omission so to notify the indemnifying party will
not relieve the indemnifying party of any liability which he may have
to any indemnified party otherwise other than under this Section 9.1.
9.2. OVERRIDE. Notwithstanding anything in this Section 9 to the
contrary, if, in connection with an underwritten public offering of the
Registered Shares, the Company, any holder of Registrable Shares and the
underwriters enter into an underwriting or purchase agreement relating to such
offering which contains provisions covering indemnification as between the
Company and such holder, then the indemnification provision of this Section 9
shall be deemed inoperative for purposes of such offering.
10. LOCKUP.
The Investor hereby agrees that, at the written request of the Company
or any managing underwriter of any underwritten public offering of securities of
the Company, the Investor shall not, without the prior written consent of the
Company or such managing underwriter, sell, make any short sale of, loan, grant
any option for the purchase of, pledge, encumber, or otherwise dispose of, or
exercise any registration rights with respect to, any Common Stock during the
90-day period (or 180-day period in connection with the Company's initial public
offering of Common Stock) commencing on the effective date of the registration
statement relating to such underwritten public offering of the Company's
securities; PROVIDED, that each officer or director of the Company and each
holder of at least 5% of its Common Stock (for this purpose, calculated on a
fully diluted basis assuming full exercise of all outstanding options, warrants,
and other rights to acquire shares of Common Stock and full conversion or
exchange of all securities that are convertible into or exchangeable for shares
of Common Stock) shall have entered into a similar agreement.
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11. GENERAL.
11.1 ADDITIONAL REGISTRATION RIGHTS. Without the prior consent of the
holders of record of at least a majority of the Registrable Shares then
outstanding, the Company shall not grant to any other holder of the Company's
securities registration rights that are superior to or in any way adversely
affect the registration rights granted to the Investor hereunder.
11.2. REMEDIES. In case that any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. The
rights, powers and remedies of the parties to this Agreement are cumulative and
not exclusive of any other right, power or remedy which such parties may have
under any other agreement or law. No single or partial assertion or exercise of
any right, power or remedy of a party hereunder shall preclude any other or
further assertion or exercise thereof.
11.3. ASSIGNMENT. None of the parties to this Agreement shall assign or
delegate any of their respective rights or obligations under this Agreement
without the prior written consent of each of the other parties hereto other than
in connection with a transfer of securities of the Company made to a Permitted
Transferee.
11.4. SURVIVAL. The rights and obligations of the parties hereto set
forth herein shall survive indefinitely, unless and until, by their respective
terms, they are no longer applicable.
11.5. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
11.6. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
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(i) If to the Company, to:
Streamline, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(ii) If to the Investor, to:
Nordstrom, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: J. Xxxxxx Xxxxxxxxx
with a copy to:
Xxxx Xxxxxx Xxxxxx Lubersky LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: D. Xxxxx Xxxxxxxxx, Esq.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) when
delivered in hand to the party to which it was directed, (ii) if sent by telex,
telecopier, facsimile machine or telegraph and properly addressed in accordance
with the foregoing provisions of this Section 11.6, when received by the
addressee, (iii) if sent by commercial courier guaranteeing next business day
delivery, on the business day following the date of delivery to such courier, or
(iii) if sent by first-class mail, postage prepaid, and properly addressed in
accordance with the foregoing provisions
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of this Section 11.6, (A) when received by the addressee, or (B) on the third
business day following the day of dispatch thereof, whichever of (A) or (B)
shall be the earlier.
11.7. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retrospectively or prospectively), with, but only with, the written consent of
each of the other parties hereto.
11.8. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.9. NO WAIVER OF FUTURE BREACH. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof. No assent, express or implied, by any party
hereto to any breach in or default of any agreement or condition herein
contained on the part of any other party hereto shall constitute a waiver of or
assent to any succeeding breach in or default of the same or any other agreement
or condition hereof by such other party.
11.10. NO IMPLIED RIGHTS OR REMEDIES; THIRD PARTY BENEFICIARIES. Except
as otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
or by reason of this Agreement. Except as otherwise expressly provided in this
Agreement, there are no intended third party beneficiaries under or by reason of
this Agreement.
11.11. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
11.12. NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
11.13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts, excluding
choice of law rules thereof.
-14-
11.14. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Registration Rights Agreement has been
executed under seal by the parties hereto as of the day and year first above
written.
STREAMLINE, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------------------
Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
NORDSTROM, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
