Exhibit 10.4
STREAMLINE, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of June 13,
1997, is by and among Streamline, Inc., a Delaware corporation (the "Company"),
and the persons listed on SCHEDULE 1 attached hereto (the "Investors").
WITNESSETH:
WHEREAS, subject to the terms and conditions set forth herein, the
Company desires to issue and sell to the Investors, and the Investors desire to
purchase from the Company, up to an aggregate of 100,000 shares of the Company's
Preferred Stock, par value $1.00 per share ("Preferred Stock"), 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"), for an aggregate purchase price of $10,000,000, as
more specifically set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein and other good and valuable consideration, the parties,
intending to be legally bound, agree as follows:
ARTICLE 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" means, 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.
"Agreement" shall have the meaning set forth in the preamble.
"Certificate of Amendment" shall mean a Certificate of Amendment of the
Company, substantially in the form attached hereto as EXHIBIT A.
"Closing" and "Closing Date" shall mean, as applicable, the "First
Closing" and the "First Closing Date" or the "Second Closing" and the "Second
Closing Date."
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"Common Stock" shall mean the common stock, par value $0.01 per share,
of the Company.
"Company" shall have the meaning set forth in the preamble.
"Financial Statements" shall mean (i) audited financial statements of
the Company containing balance sheets and statements of operations and cash
flows as at and for the Company's fiscal year ending December 31, 1996 and (ii)
an unaudited balance sheet and statement of operations and cash flows of the
Company as at and for the three months ended March 31, 1997.
"First Closing" and "First Closing Date" shall have the respective
meanings set forth in Section 2.1.
"Fully-Diluted Basis" gives effect, without duplication, to (i) all
shares of Common Stock outstanding at the time of determination plus (ii) all
shares of Common Stock issuable upon conversion of then outstanding shares of
Series A Preferred, Series B Preferred and Series C Preferred or any other
convertible securities or the exercise of any option, warrant or similar right
(whether or not then exercisable) to acquire shares of Common Stock, as if such
preferred stock or other convertible securities had been so converted or such
option, warrant or similar right had been so exercised.
"Intellectual Property" shall mean patents, patent applications,
trademarks, service marks, trademark and service xxxx applications, trade names,
copyrights, licenses and other intellectual property rights.
"Investors" shall have the meaning set forth in the preamble.
"Permits" shall mean operating authority, licenses, franchises,
permits, certificates or rights.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Registration Rights Agreement" shall mean a Registration Rights
Agreement, substantially in the form attached as EXHIBIT B hereto.
"Second Closing" and "Second Closing Date" shall have the respective
meanings set forth in Section 2.2.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, or any successor act, as the
same may be in effect from time to time.
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"Series B Preferred" shall have the meaning set forth in the recitals.
"Shares" shall mean the shares of Series B Preferred and Series C
Preferred being sold and issued to the Investors pursuant to this Agreement.
ARTICLE 2. PURCHASE AND SALE; CLOSING.
SECTION 2.1. FIRST CLOSING.
(a) Subject to the terms and conditions set forth herein, the
Company hereby agrees to issue and sell to each of the Investors, and each of
the Investors hereby severally agrees to purchase from the Company, at the First
Closing the number of shares of Series B Preferred or Series C Preferred set
forth opposite such Investor's name on SCHEDULE 1 attached hereto under the
caption "First Closing", at the price of $100.00 per share.
(b) Subject to the satisfaction or waiver of the terms and
conditions set forth herein, the purchase and sale of the Shares described in
Section 2.1(a) above shall take place at the offices of Xxxxxxx, Xxxx & Xxxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, at 10 a.m., on the date of
this Agreement, or at such other time and place as the Company and the Investors
mutually agree orally or in writing (which time and place are designated herein
as the "First Closing" and the date thereof as the "First Closing Date"). At the
First Closing, the Company shall deliver to each Investor a certificate or
certificates representing the shares of Series B Preferred or Series C Preferred
that such Investor is purchasing on the First Closing Date against payment of
the purchase price therefor by certified check payable to the Company or by wire
transfer of immediately available federal funds to such account as the Company
may designate in writing to such Investor at least two business days prior to
the First Closing Date.
SECTION 2.2. SECOND CLOSING.
(a) Each of the Persons listed on SCHEDULE 1 hereto under the
caption "Second Closing" shall have the option, at such Person's sole
discretion, to purchase at the Second Closing (as defined below) the number of
shares of Series B Preferred or Series C Preferred set forth opposite such
Investor's name on SCHEDULE 1 attached hereto under the caption "Second Closing"
at a price of $100.00 per share, subject to the terms and conditions set forth
herein. In the event that not every Person listed on SCHEDULE 1 hereto under the
caption "Second Closing" exercises its option to purchase Shares at the Second
Closing (as defined below), the Company may, at its discretion, sell to one or
more of the Investors (on a pro rata basis or on such other basis, and on such
terms and conditions, as the Company and the Investors unanimously may agree in
writing) and/or to such other Persons, and on such terms and conditions, as the
Company and the Investors may unanimously agree in writing, up to the remaining
number of authorized but unissued Shares.
(b) Subject to the satisfaction or waiver of the terms and
conditions set forth herein (and, in the case of each of General Electric
Capital Corporation and Electronic
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Data Systems Corporation, subject to the satisfaction or waiver of the terms and
conditions set forth in the letter agreement between the Company and each such
Person relating to such Person's option to purchase up to 20,000 shares of
Series B Preferred), the purchase and sale of the Shares described in Section
2.2(a) above shall take place at such time and place and on such date (but in no
event later than September 5, 1997) as the Company and the Persons purchasing
such Shares may mutually agree orally or in writing (which time, place and date
are designated herein as the "Second Closing" and the date thereof as the
"Second Closing Date"). At the Second Closing, the Company shall deliver to each
the Person purchasing Shares on the Second Closing Date a certificate or
certificates representing the shares of Series B Preferred or Series C Preferred
that such Person is purchasing on the Second Closing Date against payment of the
purchase price therefor by certified check payable to the Company or by wire
transfer of immediately available federal funds to such account as the Company
may designate in writing to such Person at least two business days prior to the
Second Closing Date.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each of the Investors as
follows:
SECTION 3.1. ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER. The
Company is a corporation duly incorporated, validly existing, and in good
standing under the laws of the State of Delaware, and it has the requisite power
and authority (corporate and other) to own and hold its properties and assets,
and to carry on its business as conducted or proposed to be conducted. The
Company has requisite power and authority to execute, deliver and perform this
Agreement and to sell, issue, and deliver the Shares to the Investors. The
copies provided to the Investors of the Certificate of Incorporation and By-Laws
of the Company, each as amended to date, are complete, true, and correct and in
full force and effect as of the date hereof and, as of the Closing Date, shall
not have been subsequently amended, modified, or repealed, except by the filing
of the Certificate of Amendment. The Company is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction in which the
ownership of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not materially
adversely affect the operations or financial condition of the Company
SECTION 3.2. AUTHORIZATION OF AGREEMENTS, ETC.
(a)(i) Each of (i) the execution, delivery and performance by
the Company of this Agreement and the Registration Rights Agreement, and (ii)
the issuance, sale, and delivery of the Shares to the Investors in accordance
with the terms hereof have been duly authorized by the board of directors and
stockholders of the Company, as necessary, and will not (with due notice or
lapse of time or both) violate any provision of law, rule, or regulation, any
order of any court or other agency of government, the Certificate of
Incorporation or the By-Laws, each as amended to date and as of the Closing
Date, or any provision of any indenture, mortgage, note, deed of trust,
agreement, or other instrument to which the Company or any of its properties or
assets is bound, or conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under the
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Certificate of Incorporation or By-Laws, each as amended to date and as of the
Closing Date, or any such indenture, mortgage, note, deed of trust, agreement,
or other instrument, or result in the creation or imposition of any lien,
charge, restriction, claim or encumbrance of any nature whatsoever upon any of
the properties or assets of the Company.
(b) The issuance, sale and delivery of the Shares in accordance
with the terms hereof have been duly authorized by the board of directors and
stockholders, as necessary, and, when issued in accordance with this Agreement,
the Shares shall be validly issued, fully paid, and nonassessable, with the
rights and privileges as set forth herein and in the Certificate of Amendment.
The Common Stock issuable upon conversion of the shares of Series B Preferred
and Series C Preferred purchased under this Agreement has been duly and validly
reserved for issuance and, upon issuance in accordance with the terms of the
Company's Certificate of Incorporation, as amended by the filing of the
Certificate of Amendment, will be duly and validly issued, fully paid and
nonassessable. The issuance, sale, and delivery of the Shares and the Common
Stock issuable upon conversion of the Shares are not subject to any unwaived
preemptive right of any stockholder of the Company or to any right of first
refusal or other right in favor of any person.
SECTION 3.3. VALIDITY. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid, and binding
obligation of the Company, enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, moratorium, or other similar laws
affecting the enforcement of creditors, rights generally and except as the
availability of equitable remedies may be limited by general principles of
equity.
SECTION 3.4. CAPITAL STOCK.
(a) As of the date hereof and as of the Closing Date, the
authorized capital stock of the Company shall consist of 25,000,000 shares of
Common Stock, of which 6,855,064 shares are issued and outstanding, and 300,000
shares of Preferred Stock, $1.00 par value per share, of which (i) 100,000
shares have been designated as Series A Convertible Preferred Stock ("Series A
Preferred"), of which 50,000 shares are issued and outstanding, (ii) 100,000
shares have been designated as Series B Preferred, none of which is issued and
outstanding prior to the Closing, and (iii) 100,000 shares have been designated
as Series C Preferred, none of which is issued and outstanding prior to the
Closing. At the First Closing, 20,000 shares of Series B Preferred and 10,000
shares of Series C Preferred shall have been, or shall be, issued to the
Investors as listed on SCHEDULE 1 attached hereto, and at the Second Closing, if
any, up to an additional 70,000 shares of Preferred Stock, consisting of shares
of Series B Preferred and/or Series C Preferred shall have been, or shall be,
issued in accordance with Section 2.2 hereof.
(b) Except for (i) options to purchase, in the aggregate,
1,207,500 shares of Common Stock, issued or authorized for issuance to certain
employees and directors of and consultants to the Company, identified on
SCHEDULE 3.4 hereto, (ii) warrants to purchase, in the aggregate, 300,000 shares
of Common Stock, at an average weighted exercise price of $1.002 per share,
issued to the parties identified on SCHEDULE 3.4 hereto, (iii) warrants to
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purchase, in the aggregate, 285,714 shares of Common Stock, for an exercise
price of $3.50 per share, issued or issuable to Intel Corporation ("Intel"),
(iv) agreements to issue to each of General Electric Capital Corporation and
Electronic Data Systems Corporation an option to purchase up to 20,000 shares of
Series B Preferred, and (v) the issuance of shares pursuant to the terms hereof,
no subscriptions, warrants, options, convertible debt, or securities, or any
commitments, agreements, or rights of any kind with respect to securities of the
Company are outstanding as of the date hereof or shall be outstanding as of the
Closing Date.
The outstanding shares of the capital stock of the Company are duly
authorized and validly issued, fully paid and nonassessable, and such shares of
such capital stock, and all outstanding options and other securities of the
Company have been issued in full compliance with the registration and prospectus
delivery requirements of the Securities Act, and the registration and
qualification requirements of all applicable state securities laws, or in
compliance with applicable exemptions therefrom, and all other provisions of
applicable federal and state securities laws, including, without limitation,
anti-fraud provisions.
SECTION 3.5. PROPERTY AND ASSETS. The Company has good title to all of
its material properties and assets and none of such properties or assets is
subject to any mortgage, pledge, lien, security interest, lease, charge or
encumbrance, except as set forth in SCHEDULE 3.5.
SECTION 3.6. COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any provision of its Certificate of Incorporation or
By-Laws, each as in effect on and as of the Closing. Except as identified on
SCHEDULE 3.6 hereto, the Company is not in violation or default of any provision
of any instrument, mortgage, deed of trust, loan, contract, commitment,
judgment, decree, order, or obligation to which it is a party or by which it or
any of its properties or assets are bound which would materially adversely
affect the financial condition or results of operations of the Company or, to
the Company's knowledge, of any provision of any federal, state, or local
statute, rule, or governmental regulation which would materially adversely
affect the condition (financial or otherwise), business, property, or
prospective results of operations or net worth of the Company. To the best of
the Company's knowledge, no employee of the Company is in violation of any term
of any contract or covenant (either with the Company or with another entity)
relating to employment, patents, proprietary information, disclosure,
non-competition or non-solicitation.
SECTION 3.7. CONSENTS. Except as identified on SCHEDULE 3.7 hereto, no
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, (i) any federal or state governmental
authority or (ii) any party to any contract identified on SCHEDULE 3.8, is
required in connection with the offer, sale or issuance of the Shares (and the
Common Stock issuable upon conversion of the Shares), except for the filing of
the Certificate of Amendment in the office of the Secretary of State of the
State of Delaware, which shall be, or shall have been, filed by the Company on
or prior to the First Closing Date; provided that the Company's representation
under this Section 3.7 is given only to the best of the Company's knowledge with
respect to any consent, approval, order,
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authorization, registration, qualification, designation, declaration or filing
that may be required on the part of any Investor as a result of such Investor's
conducting business in any regulated industry.
SECTION 3.8 MATERIAL CONTRACTS. SCHEDULE 3.8 sets forth a list of all
material agreements or commitments of any nature to which the Company is a party
or by which the Company or its properties is bound, including without limitation
(a) any agreements or commitments requiring future expenditures by the Company
in excess of $20,000 or which might result in payments to the Company in excess
of $20,000, (b) all employment and consulting agreements, employee benefit,
bonus, pension, profit-sharing, stock option, stock purchase and similar plans
and arrangements, and distributor and sales representative agreements, (c) any
agreement with any stockholder, officer or director of the Company or any
"affiliate" or "associate" of such Person (as such terms are defined in the
rules and regulations promulgated under the Securities Act), including without
limitation any agreement or other arrangement providing for the furnishing of
services by, rental of real or personal property from, or otherwise requiring
payments to, any such Person and (d) any agreement relating to Intellectual
Property rights. As of the date hereof, all of such agreements, understandings
or arrangements are in full force and effect, and there exists no default
thereunder by the Company.
SECTION 3.9 INTELLECTUAL PROPERTY. Set forth on SCHEDULE 3.9 hereto is
a list of all Intellectual Property owned by, or licensed to, the Company, with
an indication as to which of such items are owned by the Company and which are
licensed to the Company. The Intellectual Property set forth on SCHEDULE 3.9
together with all trade secrets, know-how, proprietary rights, formulas and
designs owned by, or licensed to, the Company (collectively, "Other Proprietary
Information") represents all Intellectual Property and Other Proprietary
Information necessary to enable the Company to carry on its business as now
conducted and presently proposed to be conducted. The Company is not infringing
upon the right or claimed right of any third party with respect to any
intellectual property rights of any third party. The Company has not licensed
any of the listed Intellectual Property or any Other Proprietary Information to
any other person, nor does any other person have any option or other right to
acquire, or any title, interest, claim in or lien on, any of the Intellectual
Property or any Other Proprietary Information which is owned by the Company. The
Company has not received any communications alleging that the Company (or any of
its employees or consultants) has violated or infringed or, by conducting its
business as proposed, would violate or infringe any patent, trademark, service
xxxx, trade name, copyright or trade secret or other proprietary right of any
other person or entity, and the Company is not aware of any such violation. The
Company has taken, and in the future will use its best efforts to take, all
steps reasonably necessary to preserve its legal rights in, and the secrecy of,
all of its Intellectual and Other Proprietary Information, except those for
which disclosure is required by a court or other judicial or administrative body
with legitimate jurisdiction. The Company is not obligated to pay any royalties
or other payments to any third parties with respect to the marketing, sale,
distribution, manufacturing, license or use of any Intellectual Property or any
other property or rights. The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject
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to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of such employee's best efforts to promote the
interests of the Company or that would conflict with the Company's business as
proposed to be conducted. Neither the execution and delivery of this Agreement,
nor the carrying on of the Company's business by the employees of the Company,
nor the conduct of the Company's business as proposed, will, to the best of
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to
their employment by the Company. At no time during the conception of or
reduction of any of the Company's Intellectual Property or Other Proprietary
Rights to practice was any developer, inventor or other contributor to such
patents operating under any grants from any governmental entity or agency or
private source, performing research sponsored by any governmental entity or
agency or private source or subject to any employment agreement or invention
assignment or nondisclosure agreement or other obligation with any third party
that could adversely affect Company's right in such Intellectual Property or
Other Proprietary Rights.
SECTION 3.10. PERMITS. The Company has all Permits as are necessary or
appropriate to the operation of its business as presently and proposed to be
conducted. Such Permits are in full force and effect, no violations have been
recorded in respect of such Permits and no governmental proceeding is pending
or, to the best of the Company's knowledge, threatened, that could result in the
revocation or limitation of any of such Permits. The Company's business is in
material compliance with the requirements of all such Permits.
SECTION 3.11. INSURANCE. The Company maintains valid policies of
workers' compensation insurance, key man term life insurance upon the life of
Xxxxxxx X. XxXxxxx in the amount of $1,000,000 and insurance with respect to its
properties and business of the kinds and in the amounts not less than is
customarily obtained by corporations of established reputation engaged in the
same or similar business and similarly situated, including, without limitation,
insurance against loss, damage, fire, theft, public liability and other risks.
SCHEDULE 3.11 lists the insurance carried, the policy limits thereof, the
insurance companies issuing such policies and the annual premiums paid therefor.
SECTION 3.12. FINANCIAL STATEMENTS. Attached hereto as SCHEDULE 3.12
are true and complete copies of the Financial Statements. The Financial
Statements have been prepared from the books and records of the Company, have
been prepared in accordance with generally accepted accounting principles
consistently applied and maintained throughout the periods indicated, accurately
reflect the books, records, and accounts of the Company, are complete and
correct in all material respects, and present fairly the financial condition of
the Company, as at their respective dates and the results of operations for the
periods then ended. None of the Financial Statements understates the true costs
and expenses of conducting the business or operations of the Company, fails to
disclose any material contingent liabilities, or inflates the revenues of the
Company.
SECTION 3.13. ABSENCE OF CERTAIN UNDISCLOSED LIABILITIES.
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(a) Except as set forth in the Financial Statements or on
SCHEDULE 3.13 hereto and for any liabilities arising in the ordinary course of
its business since December 31, 1996 and not material in amount, either
individually or in the aggregate,, the Company has not (i) incurred or accrued
any liabilities, debts or obligations, whether absolute, accrued, contingent,
unliquidated or otherwise and whether due or to become due, arising out of any
transaction (other than the transactions contemplated hereby) entered into prior
to or on the date hereof or out of any state of facts existing prior to or as of
the date hereof, or (ii) declared or paid any dividend or distribution to its
stockholders or redeemed or repurchased any of its capital stock. For purposes
of this Section 3.13(a), "material" means any amount in excess of $50,000.
(b) Except as set forth in SCHEDULE 3.13 hereto, (i) the
Company has no liabilities or obligations of any nature (whether known or
unknown, due or to become due, absolute, accrued, contingent or otherwise, and
whether or not determined or determinable), and (ii) to the best of the
Company's knowledge, there is no existing condition, situation or set of
circumstances which could reasonably be expected to result in such a liability
or obligation, including any liabilities or obligations under Environmental Laws
or any unfunded obligation under any employee benefit plan, except, with respect
to any of the items described in clauses (i) or (ii) above, liabilities or
obligations reflected or reserved against in the Financial Statements, and
liabilities incurred in the ordinary course of business and consistent with past
practice since December 31, 1996, which individually and in the aggregate do not
have a material adverse effect on the financial condition, business, or
prospects of the Company.
SECTION 3.14. ABSENCE OF CHANGES. Except as set forth on SCHEDULE 3.14,
since March 31, 1997, there has not been: (a) any change in the assets,
liabilities, financial condition or operations of the Company from that
reflected in the Financial Statements, except changes in the ordinary course of
business that have not been, either individually or in the aggregate, materially
adverse; (b) any change (individually or in the aggregate), except in the
ordinary course of business, in the contingent obligations of the Company by way
of guaranty, endorsement, indemnity, warranty or otherwise; (c) any damage,
destruction or loss, whether or not covered by insurance, materially and
adversely affecting the assets, properties, financial condition, prospects, or
business of the Company; (d) any waiver or compromise by the Company of a
valuable right or of a material debt owed to it; (e) any loans made by the
Company to its shareholders, employees, officers or directors, other than, in
the case of employees, travel advances made in the ordinary course of business;
(f) any increases in the compensation of any of the Company's employees,
officers or directors; (g) any declaration or any payment of any dividend or
other distribution of the assets of the Company; (h) any issuance or a sale by
the Company of any shares of Common Stock or other securities; (i) to the best
of the Company's knowledge, any other event or condition of any character that
has materially and adversely affected the Company's business or prospects; or
(j) any agreement or commitment by the Company to do any of the things described
in this Section 3.14.
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SECTION 3.15. LITIGATION: CLAIMS; INVESTIGATIONS. Except as set forth
in SCHEDULE 3.15 hereto, there are no suits, actions, or claims, or any
investigations or inquiries by any administrative agency or governmental body,
or legal, administrative, or arbitration proceedings (collectively, "Actions")
pending against or, to the best knowledge of the Company, threatened against the
Company or to which the Company is a party or, in the case of threatened
proceedings, is reasonably likely to become a party. There is no outstanding
order, writ, judgment, injunction, or decree of any court, administrative
agency, governmental body, or arbitration tribunal against or affecting the
Company or any of its properties, rights, assets, or business. To the best of
the Company's knowledge, except as set forth on any Schedule hereto, there is no
factual or legal basis for any such Action that might result, individually or in
the aggregate, in any material adverse change in the business, properties,
assets, financial condition, affairs or prospects of the Company.
SECTION 3.16. COMPLIANCE. The Company has complied in all material
respects with all laws, regulations and orders applicable to its present and
proposed business, has all permits, licenses and other governmental
authorizations required for the conduct of its business and the ownership of its
properties and is, and has been, in compliance therewith. There is no term or
provision of any mortgage, indenture, contract, agreement or instrument to which
the Company is a party or by which it or its properties is bound, or, to the
best of the Company's knowledge, any provision of any state or federal judgment,
decree, order, statute, rule or regulation applicable to or binding upon the
Company, which materially adversely affects or, in the future is reasonably
likely to materially adversely affect, the business, prospects, assets or
condition, financial or otherwise, of the Company. None of the activities or
business of the Company are, or cause the Company to be, and the Company is not,
in violation of any federal or state law, rule, regulation or order, any term of
its Certificate of Incorporation or By-Laws, each as amended to date, the
Certificate of Amendment or any agreement or instrument. To the best of the
Company's knowledge, no employee of the Company is in violation of any term of
any contract or covenant (either with the Company or with another entity)
relating to employment, patents, proprietary information disclosure,
non-competition or non-solicitation.
SECTION 3.17. EMPLOYEE MATTERS. Except as set forth on SCHEDULE 3.17
hereto, the Company is not a party to or bound by any currently effective
employment contract, deferred compensation agreement, bonus plan, incentive
plan, profit sharing plan, retirement agreement or other employee compensation
agreement or arrangement with any collective bargaining agent. Each employee of
the Company with access to confidential or proprietary information has executed
and delivered to the Company the Company's standard Nondisclosure and
Development Agreement (an accurate copy of which has been provided to the
Investors), and each such agreement is in full force and effect. No employees of
the Company are represented by any labor union or covered by any collective
bargaining agreement. There is no pending or, to the Company's knowledge,
threatened labor disagreement involving the Company and any group of its
employees.
SECTION 3.18. ERISA. Except as set forth in SCHEDULE 3.18 hereto, the
Company does not have or otherwise contribute to or participate in any employee
benefit plan subject to the Employee Retirement Income Security Act of 1974.
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SECTION 3.19. BROKERS. The Company has no contract, arrangement, or
understanding with any broker, finder, or similar agent with respect to the
transactions contemplated by this Agreement.
SECTION 3.20. SUBSIDIARIES. Except as set forth in SCHEDULE 3.20
hereto, as of the date hereof, the Company does not own, directly or indirectly,
any shares of capital stock, partnership interests, or other participation,
rights, or other interests in the nature of an equity interest in any
corporation, partnership, company, trust, or other entity, or any option,
warrant, or other security convertible into any of the foregoing.
SECTION 3.21. USE OF PROCEEDS. All of the cash proceeds from the sale
of the Shares will be used by the Company solely in accordance with the
Company's business plan, as amended to reflect the provisions of that certain
Development Agreement of even date herewith between the Company and Intel
Corporation.
SECTION 3.22. TAXES. The Company has accurately prepared and filed all
federal, state, local and foreign tax returns required to be filed by it. All
taxes shown to be due and payable on such returns, any assessment received, and
all other taxes due and payable by the Company have been paid or will be paid
prior to the time they become delinquent. The federal income tax returns of the
Company have not been audited by the Internal Revenue Service. No deficiency
assessment or proposed adjustment of the Company's income taxes is pending, and
the Company has no knowledge of any proposed liability for any tax to be imposed
upon its properties for which the Company has not adequately reserved. The
provisions for taxes in the Financial Statements are sufficient for the payment
of all accrued and unpaid federal, state, county and local taxes of the Company,
whether or not assessed or disputed as of the date of each such balance sheet.
Other than as disclosed on SCHEDULE 3.15, there have been no examinations or
audits of any tax returns or reports by any applicable state or local
governmental agency. There are in effect no waivers of applicable statutes of
limitations with respect to taxes for any year. The Company has not elected
pursuant to the Internal Revenue Code of 1986, as amended (the "Code"), to be
treated as an "S" corporation or a collapsible corporation pursuant to Section
341(f) or Section 1362(a) of the Code, nor has it made any other elections
pursuant to the Code (other than elections which related solely to matters of
accounting, depreciation or amortization) which would have a material affect on
the Company, its financial condition, its business as presently conducted or
presently proposed to be conducted or any of its properties of material assets.
SECTION 3.23. NO PUBLIC OFFERING. Neither the Company nor any of its
directors, officers, affiliates, or any person or entity acting as agent for or
on behalf of any of the foregoing, directly or indirectly, has sold, offered for
sale, or solicited offers to purchase any of the Shares or other securities of
the Company by means of any general advertising or general solicitation so as to
bring the offer, issuance, or sale of the Shares contemplated by this Agreement
within the registration requirements of the Securities Act or within the
registration or qualification requirements of any "blue sky" or securities laws
of any state or other jurisdiction.
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SECTION 3.24. REGISTRATION RIGHTS. Except as set forth on SCHEDULE 3.24
hereto and as provided in the Registration Rights Agreement, the Company has not
granted or agreed to grant any registration rights, including piggyback
registration rights, to any person or entity.
SECTION 3.25. DISCLOSURES. Neither this Agreement nor any Schedule or
Exhibit hereto, nor any report, certificate or instrument furnished to the
Investors or their counsel in connection with the transactions contemplated by
this Agreement when read together, contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. The Company knows of
no information or fact which has or would have a material adverse effect on the
business, prospects, assets or condition, financial or otherwise, of the Company
which has not been disclosed to the Investors in writing.
SECTION 3.26. HAZARDOUS MATERIALS. During the period that the Company
has owned or leased its properties and facilities, (a) there have been no
disposals, releases or threatened releases of Hazardous Materials (as defined
below) on, from or under such properties or facilities, (b) neither the Company
nor, to the Company's knowledge, any third party, has used, generated,
manufactured or stored on, under or about such properties or facilities or
transported to or from such properties or facilities any Hazardous Materials.
The Company has no knowledge or any presence, disposals, releases or threatened
releases of Hazardous Materials on, from or under any of such properties or
facilities, which may have occurred prior to the Company having taken possession
of any of such properties of facilities. For purposes of this Agreement, the
terms "disposal", "release", and "threatened release" shall have the definitions
assigned thereto by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended ("CERCLA").
For the purposes of this Section, "Hazardous Materials" shall mean any hazardous
or toxic substance, material or waste which is regulated under, or defined as a
"hazardous substance", "pollutant", "contaminant", "toxic chemical", "hazardous
material", "toxic substance", or "hazardous chemical" under (1) CERCLA; (2) the
Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 ET
SEQ.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, ET
SEQ.; (4) the Toxic Substances Control Act, 15 U.S.C. Section 2601 ET SEQ.; (5)
the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 ET SEQ.;
(6) regulations promulgated under any of the above statutes; or (7) any
applicable state or local statute, ordinance, rule, or regulation that has a
scope or purpose similar to those statutes identified above.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
Each Investor severally represents and warrants to the Company, with
respect to itself only, that:
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SECTION 4.1. ACCREDITED INVESTOR: AUTHORIZATION, ETC. Such Investor is
an "accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act, has the power and authority to enter into and perform this
Agreement and to purchase the Shares.
SECTION 4.2. INVESTMENT KNOWLEDGE. Such Investor has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the risks and merits of its investment in the Company and is
capable of bearing the economic risks of such investment, including a complete
loss of its investment.
SECTION 4.3. OPPORTUNITY TO DISCUSS. Such Investor has had an
opportunity to discuss the business, management, and financial affairs of the
Company with the Company's representatives.
SECTION 4.4. INVESTMENT INTENT. The Shares are being acquired for such
Investor's own account for the purpose of investment and not with a view to or
for resale in connection with any distribution thereof or interest therein.
SECTION 4.5. REGISTRATION. Such Investor understands that (a) the
Shares have not been registered under the Securities Act by reason of their
issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Rule 506 under Regulation D and Section 4(2), (b) the
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such registration, (c) the
Shares shall bear a legend to such effect, and (d) the Company will make a
notation on its transfer books to such effect.
ARTICLE 5. CONDITIONS PRECEDENT TO CLOSING.
SECTION 5.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH INVESTOR. The
obligations of each Investor to purchase the Shares hereunder are subject to the
satisfaction or the waiver by such Investor of the following conditions prior to
or contemporaneously with the Closing, unless otherwise indicated:
(a) The representations and warranties of the Company contained in this
Agreement (except for such representations and warranties as are limited by
their terms to an earlier specified date (which shall be true as of such date))
shall be true and correct in all material respects at and as of the Closing
Date; and the Company shall have complied in all material respects with the
agreements set forth in this Agreement required to be performed by it at or
prior to the Closing;
(b) The Chief Executive Officer of the Company shall have delivered to
the Investors at the Closing a certificate stating that the conditions specified
in paragraph (a) above been fulfilled;
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(c) The Company shall have delivered to the Investors evidence of a key
man term life insurance upon the life of Xxxxxxx X. XxXxxxx in the amount of
$1,000,000, with the proceeds payable exclusively to the Company;
(d) The Company shall have delivered to the Investors the opinion of
Xxxxxxx, Xxxx & Xxxxx LLP, counsel for the Company, dated the date of the
Closing, substantially in form attached as EXHIBIT D hereto;
(e) The Company and each Investor (other than Reliance Insurance
Company) shall have entered into the Registration Rights Agreement;
(f) The Certificate of Amendment shall have been filed in the office
of, and accepted by, the Secretary of State of the State of Delaware;
(g) Reliance Insurance Company, the Company and Xxxxxxx X. XxXxxxx
shall have terminated Section 9 of that certain Series A Stock Purchase
Agreement, dated May 15, 1996;
(h) The Company and Intel shall have entered into a certain Development
Agreement of even date herewith (the "Development Agreement"); and
(i) The offer and sale of the Shares pursuant to this Agreement shall
be exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable state
securities laws.
SECTION 5.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY. The
obligations of the Company to issue and sell the Shares pursuant to this
Agreement are subject to the satisfaction or the waiver by the Company of the
condition that contemporaneously with the Closing the representations and
warranties made by each Investor in this Agreement (except for such
representations and warranties as are limited by their terms to an earlier
specified date (which shall be true as of such date)) shall be true and correct
in all material respects at and as of the Closing Date; and each Investor shall
have complied in all material respects with the agreements hereunder required to
be performed by it at or prior to the Closing.
ARTICLE 6. COVENANTS OF THE COMPANY.
SECTION 6.1. FINANCIAL AND OTHER INFORMATION. Streamline will deliver
to each Investor 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,
-15-
setting forth in each case in comparative form the figures for the corresponding
periods of the previous fiscal year;
(b) as soon as available and in any event 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
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;
(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;
(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, such other notices,
Information and data with respect to the Company as the Company delivers to the
holders of Common Stock, and such other information and data as the Investors
may from time to time reasonably request.
Notwithstanding the foregoing, the Company's obligations to deliver the
information specified in paragraphs (c) and (d) shall terminate once the Company
becomes subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
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 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 6.2. INSPECTION. From and after the First Closing Date, the
Company will permit any authorized representative of an Investor to visit and
inspect any of the properties
-16-
of the Company, to examine its and their books, reports, records and papers (and
make copies thereof and take extracts therefrom) and to discuss its and their
affairs, finances and accounts with, and to be advised as to the same by, its
and their officers, all at such reasonable times as such Investor may reasonably
request during normal business hours and following reasonable notice to the
Company.
SECTION 6.3. MATERIAL CHANGES AND LITIGATION. The Company shall
promptly notify the Investors of any material adverse change in the business,
prospects, assets or condition, financial or otherwise, of the Company and of
any litigation or governmental proceeding or investigation brought or, to the
best of the Company's knowledge, threatened against, the Company, or against any
officer, director, key employee or principal stockholder of the Company
materially adversely affecting or which, if adversely determined, would
materially adversely affect its business, prospects, assets or condition,
financial or otherwise.
SECTION 6.4. KEY MAN INSURANCE. For a period of five years after the
First Closing Date, Streamline shall maintain term life insurance upon the life
of Xxxxxxx X. XxXxxxx in the amount of $1,000,000, with the proceeds payable
exclusively to the Company.
SECTION 6.5. XXXX-XXXXX-XXXXXX FILING. The Company will file and pay
all filing fees of any Investor relating to any Xxxx-Xxxxx-Xxxxxx filing
required in order for such Investor to convert its Shares into Common Stock.
SECTION 6.6. NONDISCLOSURE AGREEMENTS. Streamline shall require all
persons now or hereafter employed by Streamline who have access to confidential
and proprietary information of the Company to enter into the Company's standard
Nondisclosure and Development Agreements.
SECTION 6.7. NEGATIVE COVENANTS. So long as any shares of Series A
Preferred, Series B Preferred or Series C Preferred are outstanding, the Company
shall not, without the prior written consent of a majority in interest of the
holders of then outstanding shares of Series A Preferred, Series B Preferred and
Series C Preferred (voting together as a class, with each such holder being
entitled to the number of votes to which such holder would be entitled upon
conversion of each share of Series A Preferred, Series B Preferred and Series C
Preferred held of record by such holder):
(i) Reserve for issuance under any stock option plan
pursuant to which stock options may be granted to employees, directors or
consultants of the Company, in excess of 1,000,000 shares of Common Stock;
(ii) Make (or permit any subsidiary of the Company to
make) any loan or advance to, or purchase any stock or other securities of, any
subsidiary of the Company or other person unless it is wholly owned by the
Company;
(iii) Make any loan or advance to any person, including,
without limitation, any shareholder, employee, officer or director of the
Company or any subsidiary
-17-
of the Company, except advances and similar expenditures in the ordinary course
of business or under the terms of an employee stock or option plan approved by
the Board of Directors; or
(iv) Guarantee directly or indirectly, any indebtedness
except for trade accounts of any subsidiary of the Company arising in the
ordinary course of business.
In addition, the Company shall not, without the unanimous written
consent of the Investors, amend the letter agreement between the Company and
Xxxxxxxx Consulting LLP, dated May 13, 1996.
SECTION 6.8. EXPENSES OF DIRECTOR. The Company shall promptly reimburse
in full each director of the Company who is not an employee of the Company and
who was elected as a director by the holders of Series A Preferred and Series C
Preferred or by any holder of Series B Preferred for all reasonable
out-of-pocket expenses incurred in attending each meeting of the Board of
Directors of the Company or any committee thereof, as such director may request.
SECTION 6.9. PRESS RELEASES AND FILINGS. For so long as an Investor and
its Affiliates collectively continue to own at least 10% of all the Shares
issued to such Investor under the Stock Purchase Agreement (or shares of Common
Stock issued upon conversion thereof), the Company covenants and agrees to
provide each such Investor, promptly (and, in any case, within three business
days) after release or filing, with copies of any press releases or other public
announcements concerning the Company and copies of any filing by the Company
with the U.S. Securities and Exchange Commission.
SECTION 6.10. RESTRICTIONS ON EMPLOYEE STOCK OPTIONS. The Company shall
not sell stock to employees, officers or directors of or consultants to the
Company, except for options convertible into or exercisable for Common Stock, in
an amount not to exceed fifteen percent (15%), in the aggregate, of the number
of shares of the Company's capital stock, on a Fully-Diluted Basis, as of the
date hereof, granted to such individuals.
SECTION 6.11. RESERVATION OF COMMON STOCK. The Company shall reserve
and maintain a sufficient number of shares of Common Stock for issuance upon
conversion of all of the outstanding Shares.
SECTION 6.12. LIMITATION ON SALE OF THE SHARES. The Company shall not
issue any shares of Series B Preferred or Series C Preferred other than in
accordance with this Agreement, and promptly after the later of (i) the Second
Closing, if any or (ii) September 5, 1997, the Company shall take all required
action to amend its Certificate of Incorporation, as then in effect, to provide
that any shares of Series B Preferred and Series C Preferred authorized for
issuance, but not then issued and outstanding, shall cease to be authorized for
issuance by the Company..
SECTION 6.13. TERMINATION OF COVENANTS. The covenants of the Company
contained in Sections 6.1, 6.3, 6.6, 6.7 and 6.10 shall terminate, and be of no
further force or effect,
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upon the Company's first: public offering of Common Stock, resulting in gross
proceeds to the Company of at least $15,000,000 (and net proceeds of at least
$14,000,000), at a price per share of at least $7.50.
ARTICLE 7. LEGEND.
Each Investor understands that the certificate or certificates
evidencing the Shares purchased by such Investor shall bear the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (ii) AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT.
The Investors further understand that the Company may place a stop-transfer
order on any of the Shares with the Company's transfer agent.
ARTICLE 8. MISCELLANEOUS.
SECTION 8.1. SURVIVAL OF AGREEMENTS. All agreements, representations,
and warranties made herein shall survive each Closing and remain in full force
and effect for a period of two years thereafter.
SECTION 8.2. PARTIES IN INTEREST. All representations and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and permitted assigns
of the parties hereto, whether so expressed or not. Except as otherwise
expressly provided herein, nothing in this Agreement is intended to confer upon
any other person or entity any rights or remedies hereunder.
SECTION 8.3. NOTICES. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed effectively
given and received upon delivery in person, or one business day after delivery
by national overnight courier service or by telecopier transmission with
acknowledgment of transmission receipt, or three business days after deposit via
certified or registered mail, return receipt requested, in each case addressed
as follows:
(a) if to the Company:
Streamline, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
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with a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
(b) if to the Investors, at the address for each Investor set forth on
SCHEDULE 1 to the 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.
SECTION 8.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 8.5. ENTIRE AGREEMENT. This Agreement, including the Schedules
and Exhibits hereto constitutes the sole and entire agreement of the parties
with respect to the subject matter hereof. All Schedules and Exhibits hereto are
hereby incorporated herein by reference.
SECTION 8.6. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 8.7. NO WAIVERS; AMENDMENTS.
(a) No failure or delay on the part of any party in exercising any
right, power, or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power, or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive of
any remedies that may be available to any party at law or in equity or
otherwise.
(b) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Company and
Investors which, at any given time, hold sixty-six and two-thirds (66 2/3%) or
more of the aggregate voting power of the outstanding shares of Series A
Preferred, Series B Preferred and Series C Preferred, with each Investor being
entitled to the number of votes to which such Investor would be entitled upon
conversion of each share of Series B Preferred and Series C Preferred held of
record by such holder.
-20-
SECTION 8.8. SEVERABILITY. If any provision of this Agreement shall be
declared void or unenforceable by a judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
SECTION 8.9. GENDER. All pronouns and all variations thereof shall be
deemed to refer to the masculine, feminine, or neuter, singular or plural, as
the identity of the person or persons, thing or entity may require.
SECTION 8.10. HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 8.11. CONFIDENTIALITY. Each party hereto agrees that it shall
at all times keep confidential and not divulge, furnish or make accessible to
anyone, except with the prior written permission of the other party or as
required by applicable law, rule or regulation (in which event, the disclosing
party shall use all reasonable efforts to obtain confidential treatment of
information so disclosed), any confidential information, knowledge or data
concerning or relating to the business or financial affairs of the other parties
(including, without limitation, the terms, conditions and existence of this
Agreement and the Development Agreement) to which such party has been or shall
become privy by reason of this Agreement, discussions or negotiations relating
to this Agreement, the performance of its obligations hereunder or the ownership
of Shares purchased hereunder. The parties hereto further agree that there shall
be no press release or other public statement issued by either party relating to
this Agreement or the transactions contemplated hereby, unless the parties
otherwise agree in writing. The provisions of this Section 8.11 shall be in
addition to, and not substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto with respect to the
transactions contemplated hereby. With reference to information acquired
pursuant to any information or inspection rights granted hereunder, each party
acknowledges that U.S. securities laws prohibit the purchase or sale of
securities of any issuer with any class of securities registered pursuant to
Section 12 or 15 of the Securities Exchange Act of 1934, as amended, by any
person acting on the basis of material non-public information relating to the
issuer of any such securities.
SECTION 8.12. PUBLIC ANNOUNCEMENTS. The Company shall not use Intel's
name or refer to Intel directly or indirectly in connection with Intel's
relationship with the Company in any advertisement, news release or professional
or trade publication, or in any other manner, unless otherwise required by law
or with Intel's prior written consent.
SECTION 8.13. LEGAL FEES. In the event of any action at law, suit in
equity or arbitration proceeding in relation to this Agreement or any Shares or
other securities of the Company issued or to be issued, the prevailing party
shall be paid by the other party a reasonable sum for attorneys' fees and
expenses of such prevailing party.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the day and year first above written.
STREAMLINE, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
INVESTORS:
RELIANCE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxxxxxx
Vice President
PAINEWEBBER CAPITAL INC.
By: /s/ XXXXXXXXX XXX
----------------------------------------------
Xxxxxxxxx Xxx
President
INTEL CORPORATION
By: /s/ Xxxxxx Xxxxx
----------------------------------------------
Xxxxxx Xxxxx
Assistant Treasurer
EXHIBITS
Exhibit A - Certificate of Amendment
Exhibit B - Registration Rights Amendment
Exhibit C - Opinion
SCHEDULES
Schedule 1 - Name of Investor, Number of Shares and Subscription Price
Schedule 3.4 - Capitalization
Schedule 3.5 - Property and Assets
Schedule 3.6 - Compliance with Other Instruments
Schedule 3.7 - Consents
Schedule 3.8 - Material Contracts
Schedule 3.9 - Intellectual Property
Schedule 3.11 - Insurance
Schedule 3.12 - Financial Statements
Schedule 3.13 - Absence of Certain Liabilities
Schedule 3.14 - Absence of Certain Changes
Schedule 3.15 - Litigation
Schedule 3.17 - Employee Matters
Schedule 3.18 - ERISA
Schedule 3.20 - Subsidiaries
Schedule 3.21 - Dividends and Distributions
Schedule 3.24 - Registration Rights
