Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
June 13, 1997, by and among Streamline, Inc., a Delaware corporation (the
"Company"), PaineWebber Capital Inc., a Delaware corporation, Intel Corporation,
a Delaware corporation ("Intel"), and each other person that becomes a party to
this Agreement (collectively, the "Investors").
PREAMBLE
WHEREAS, the Investors have purchased up to an aggregate of 100,000
shares (the "Shares") of the Company's Preferred Stock, par value $1.00 per
share, consisting of shares of the Company's Series B Convertible Preferred
Stock (the "Series B Preferred") and shares of the Company's Series C
Convertible Preferred Stock (the "Series C Preferred"), pursuant to the terms of
that certain Stock Purchase Agreement, of even date herewith, by and among the
Company and the Investors (the "Stock Purchase Agreement");
WHEREAS, it is a condition precedent to the consummation by the
Investors of all of their respective obligations under the Stock Purchase
Agreement that the Company and the Investors 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 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 any
Investor, any Affiliate of such Investor or any other Person that
purchases or otherwise acquires all or a portion of the Shares of such
Investor (or shares of Common Stock issued upon the conversion
thereof).
"PERSON" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization, and any
government, governmental department or agency or political subdivision
thereof.
"PREFERRED STOCK" shall mean the Company's Series A
Convertible Preferred Stock, the Series B Preferred and the Series C
Preferred.
"REGISTRABLE SHARES" shall mean, with respect to each Investor
(or its Permitted Transferee), any or all of the shares of Common Stock
issued upon conversion of any or all of such Investor's (or Permitted
Transferee's) shares of Preferred Stock and, in the case of Intel,
shall also include any shares of Common Stock issuable upon exercise of
that certain warrant issued by the Company to Intel on the date hereof;
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, Investors holding thirty (30)
percent of the Registrable Shares then outstanding may notify the Company in
writing that such Investors desires 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
such Investors shall have an aggregate proposed sales price of at least
$2,000,000. Thereafter, the Company shall promptly give to each Investor written
notice of such demand for registration. Upon the written request of any Investor
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 Investor, 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
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Investors; PROVIDED that, if the Company has been given a notice of the type
specified in this Section 2 or 4.1, the 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 Investors 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 by the
Investors, pro rata among the Investors on the basis of the number of
Registrable Shares requested to be registered in such registration 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, the Investor may not 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.
3.1. REGISTRATION. If at any time after the Company's initial public
offering, 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
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Forms S-4 or S-8 or any applicable successor Forms), the Company shall, each
such time, give to each Investor written notice of its intent to do so. Upon the
written request of any Investor 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 Investor, 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 such Investor is equal to at
least twenty-five (25) percent of the total number of Registrable Shares held by
such Investor, and (ii) such Investor 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 Investor therein unless such Investor 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 any Investors, 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 any Investors) exercising
piggy-back registration rights, pro rata among the Investors and other
stockholders exercising piggy-back 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.
4. FORM S-3 REGISTRATION.
4.1. REGISTRATION UPON REQUEST. In the event that the Company shall
receive from Investors holding 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 Investors, then the Company
will promptly use its best efforts to effect such registration of all or such
portion of such Investors' 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 each Investor written notice of such request for
registration. Upon the written request of any Investor 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
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Investor, 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 REGISTRATIONS. 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
requesting Investors 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.
4.5. LIMITATION ON REQUESTS. Notwithstanding anything in this Section
4.5 to the contrary, the Investors may not 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.
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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 of any
Investor, 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 such Investor 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 the
Investor may reasonably request in order to facilitate the disposition
of such Registrable Shares; and
(d) Use its best efforts to register and qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as 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 each Investor shall, to the extent required by such
jurisdiction, pay its PRO RATA share of selling expenses.
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 Investor requesting
registration of any of such Investor's Registrable Shares shall furnish to the
Company such information regarding such Investor, the Registrable Shares held by
such Investor, 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.
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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 of Investors upon
exercise of their demand registration rights; and PROVIDED, FURTHER, that
Investors 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
Investors thereunder.
9. INDEMNIFICATION.
9.1. INDEMNIFICATION. In the event that any Registrable Shares of any
Investor are included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless such Investor, any underwriter (as defined in the
Securities Act) for the Company, and each officer and director of such
Investor or such underwriter and each Person, if any, who controls such
Investor 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 statements therein not misleading; and will reimburse the
Investor, 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 Investor, any
underwriter for such Investor or controlling Person with respect to
such Investor.
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(b) To the extent permitted by law, such Investor 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
the Investor expressly for use in connection with such registration;
and the Investor 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 Investor against 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 Investor 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 Investor,
then the indemnification provision of this Section 9 shall be deemed inoperative
for purposes of such offering.
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10. LOCKUP.
Each 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, such 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.
11. GENERAL.
11.1 ADDITIONAL REGISTRATION RIGHTS. Without the prior consent of
Investors holding 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 Investors 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.
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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:
(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 & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(ii) If to an Investor, to the address of such Investor set forth on
SCHEDULE 1 to the Stock Purchase Agreement
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 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.
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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.
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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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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
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Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
RELIANCE INSURANCE COMPANY
By: /S/ XXXX X. XXXXXXXXXX
----------------------------------------
Xxxx X. Xxxxxxxxxx
Vice President
PAINEWEBBER CAPITAL INC.
By: /S/ XXXXXXXXX XXX
----------------------------------------
Xxxxxxxxx Xxx
President
INTEL CORPORATION
By: /S/ XXXXXX XXXXX
----------------------------------------
Xxxxxx Xxxxx
Assistant Treasurer
STREAMLINE, INC.
INSTRUMENT OF ADHERENCE
SEPTEMBER 23, 1997
Reference is made to that certain Registration Rights Agreement (the
"Registration Rights Agreement"), dated as of June 13, 1997, initially by and
among Streamline, Inc., a Delaware corporation (the "Company"), PaineWebber
Capital Inc., Intel Corporation.
As a condition to the undersigned's purchase on the date hereof of
shares of the Company's Series B Convertible Preferred Stock, par value $1.00
per share, the undersigned hereby agrees to become a party as of the date hereof
to the Registration Rights Agreement as an "Investor" thereunder and that, as
such, the undersigned shall be afforded all of the rights of and subject to all
of the obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of
the date first written above.
SAP AMERICA, INC.
By: /S/ XXXXX X. XXXXX
--------------------------------
Xxxxx X. XxXxx
Chief Operations Officer and
Chief Financial Officer
Accepted:
STREAMLINE, INC.
By: /S/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
RELIANCE INSURANCE COMPANY, on behalf of itself and its nominee, HARE & Co.
By:/S/ XXXX X. XXXXXXXXXX
----------------------------------
Xxxx X. Xxxxxxxxxx
Vice President
INTEL CORPORATION
By:/S/ XXXXXX XXXXXXX
----------------------------------
Xxxxxx Xxxxxxx
Vice President and Treasurer
PAINEWEBBER CAPITAL INC.
By:/S/ XXXXXXXXX XXX
----------------------------------
Xxxxxxxxx Xxx
President
GENERAL ELECTRIC CAPITAL CORPORATION
By:/S/ XXXXXX X. XXXXXXX
----------------------------------
Xxxxxx X. Xxxxxxx
Managing Director - Technology Ventures
(As Attorney in fact)
STREAMLINE, INC.
INSTRUMENT OF ADHERENCE
SEPTEMBER 23, 1997
Reference is made to that certain Registration Rights Agreement (the
"Registration Rights Agreement"), dated as of June 13, 1997, initially by and
among Streamline, Inc., a Delaware corporation (the "Company"), PaineWebber
Capital Inc., Intel Corporation.
As a condition to the undersigned's purchase on the date hereof of
shares of the Company's Series B Convertible Preferred Stock, par value $1.00
per share, the undersigned hereby agrees to become a party as of the date hereof
to the Registration Rights Agreement as an "Investor" thereunder and that, as
such, the undersigned shall be afforded all of the rights of and subject to all
of the obligations of an Investor pursuant to the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned hereby sets forth its hand as of
the date first written above.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ XXXXXX X. XXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxx
Managing Director - Technology Ventures
(As Attorney in fact)
Accepted:
STREAMLINE, INC.
By:/S/ XXXXXXX X. XXXXXXX
----------------------------------------
Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
-2-
RELIANCE INSURANCE COMPANY, on behalf of itself and its nominee, HARE & Co.
By:/S/ XXXX X. XXXXXXXXXX
----------------------------------------
Xxxx X. Xxxxxxxxxx
Vice President
INTEL CORPORATION
By:/S/ XXXXXX XXXXXXX
----------------------------------------
Xxxxxx Xxxxxxx
Vice President and Treasurer
PAINEWEBBER CAPITAL INC.
By:/S/ XXXXXXXXX XXX
----------------------------------------
Xxxxxxxxx Xxx
President
SAP AMERICA, INC.
By:/S/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. XxXxx
Chief Operations Officer and
Chief Financial Officer
