Exhibit 10.28
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Agreement and Plan of Merger and Reorganization (this "Agreement")
dated as of November 2, 1998, is by and among Streamline, Inc. ("Streamline"), a
Delaware corporation, Streamline Acquisition Sub, Inc. ("Merger Sub"), a
Delaware corporation that is a wholly owned subsidiary of Streamline, and
Streamline Mid-Atlantic, Inc. (the "Company"), a Delaware corporation.
WHEREAS, the parties desire that Merger Sub be merged with and into the
Company (the "Merger"), subject to the terms and conditions set forth in this
Agreement; and
WHEREAS, for Federal income tax purposes, the parties intend and expect
that the Merger qualify as a reorganization under the provisions of ▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal Revenue Code of 1986, as amended (the "Code"); and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. CLOSING. Subject to the other provisions of this Agreement, a
closing (the "Closing") will be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as soon as is reasonably
practicable following satisfaction or waiver of the conditions set forth in
Sections 8 and 9 (the date on which the Closing actually occurs being referred
to herein as the "Closing Date"). On the Closing Date, Merger Sub and the
Company will execute a Certificate of Merger (the "Merger Certificate")
substantially in the form of the attached EXHIBIT A and file it with the
Delaware Secretary of State in order to cause the Merger to be effected in
accordance with the laws of the State of Delaware. The Merger will be effective
upon the filing of the Merger Certificate (the "Effective Time"). For all
purposes, all of the document deliveries and other actions to occur at the
Closing will be conclusively presumed to have occurred at the same time,
immediately before the Effective Time.
2. EFFECT OF MERGER. At the Effective Time, automatically and without
further action:
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2.1. SURVIVING CORPORATION. Merger Sub will be merged with and into the
Company and the separate existence of Merger Sub will cease. The Company will
continue in existence as the surviving corporation in the Merger (the "Surviving
Corporation"). The effect of the Merger will be as provided in the applicable
provisions of the Delaware General Corporation Law (the "DGCL"). Without
limiting the generality of the foregoing, and subject thereto, except as
otherwise provided herein, all of the property, rights, privileges, powers, and
franchises of Merger Sub and the Company, respectively, will vest in the
Surviving Corporation, and all of the debts, liabilities, and duties of Merger
Sub and the Company, respectively, will become the debts, liabilities, and
duties of the Surviving Corporation.
2.2. CERTIFICATE OF INCORPORATION. The Company's Certificate of
Incorporation, as in effect immediately before the Effective Time, will be
amended by the Merger Certificate (among other things, to reduce the Company's
authorized capital stock to one share of common stock), and as so amended will
be the Certificate of Incorporation of the Surviving Corporation.
2.3. BY-LAWS. The Company's by-laws, as in effect immediately before
the Effective Time, will be amended and restated to read in their entirety as
set forth in the attached EXHIBIT B, and as so amended and restated will be the
by-laws of the Surviving Corporation.
2.4. DIRECTORS AND OFFICERS. From and after the Effective Time, the
respective officers and members of the Board of Directors of the Surviving
Corporation will consist of those persons named as such in the Merger
Certificate, each such person to hold office, subject to the applicable
provisions of the Certificate of Incorporation and the by-laws of the Surviving
Corporation, until the next annual meeting of directors or stockholders, as the
case may be, of the Surviving Corporation and until his successor is duly
elected or appointed and qualified.
2.5. CONVERSION OF COMPANY STOCK.
(a) COMPANY COMMON STOCK. Each share of common stock, par
value $.01 per share, of the Company ("Company Common Stock") issued
and outstanding immediately before the Effective Time (other than any
Dissenting Shares (as defined in Section 2.7) and other than any shares
held directly or indirectly by Streamline or the Company or any of
their respective subsidiaries) will be converted into and become
one-seventh (1/7th) of one share (such number of shares, as adjusted
pursuant to Section 2.5(b), the "Exchange Ratio") of common stock, par
value $.01 per share, of Streamline ("Streamline Common Stock"),
subject to adjustment as provided in Section 2.5(c) and to the payment
of cash
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adjustments in lieu of the issuance of fractional shares as provided in
Section 3.3.
(b) ADJUSTMENT OF EXCHANGE RATIO. In the event that,
subsequent to the date of this Agreement but before the Effective Time,
the shares of Streamline Common Stock issued and outstanding as of the
date of this Agreement are increased, decreased, or changed into or
exchanged for a different number or kind of shares or securities
through reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other similar changes in
Streamline's capitalization, then an appropriate and proportionate
adjustment will be made to the Exchange Ratio so that each holder of
Company Common Stock immediately before the Effective Time will receive
pursuant to this Section 2.5, that number of shares of Streamline
Common Stock that such holder would have received as a result of such
change if such change had occurred immediately after the Effective Time
(and such holders were treated for purposes of such change as holders
of Streamline Common Stock).
2.6. CANCELLATION OF TREASURY STOCK, ETC. Each share of Company Common
Stock held directly or indirectly by Streamline or the Company or any of their
respective subsidiaries will be canceled and will cease to exist, and no payment
will be made with respect thereto.
2.7. DISSENTING SHARES. Each share of Company Common Stock that,
immediately before the Effective Time, was held by any person who has duly
exercised the appraisal rights afforded to dissenting stockholders pursuant to
Section 262 of the DGCL (such shares, collectively, "Dissenting Shares") will
not be converted into or represent the right to receive the consideration
referred to in Section 2.5 hereof. Instead, the holders of Dissenting Shares
will be entitled to receive payment of the appraised value of such shares in
accordance with the provisions of such Section 262, except that all Dissenting
Shares held by stockholders of the Company who withdraw, fail to perfect, or
otherwise lose their appraisal rights with respect to Dissenting Shares will
thereupon be deemed to have converted such shares into shares of Streamline
Common Stock pursuant to Section 2.5 hereof.
2.8. CONVERSION OF MERGER SUB'S SHARES. Each share of the common stock,
$0.01 par value per share, of Merger Sub that was issued and outstanding
immediately before the Effective Time will be converted into and become one
share of the common stock, $0.01 par value, of the Surviving Corporation.
2.9. TAX TREATMENT. The parties intend and expect that the Merger will
qualify as a "reorganization" within the meaning of Section 368 of the Code.
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3. PROCEDURES.
3.1. CERTIFICATES. Immediately after the Effective Time, stock
certificates (each, a "Certificate," and collectively, the "Certificates")
representing shares of Company Common Stock that have been converted into shares
of Streamline Common Stock in the Merger will be conclusively deemed to
represent such shares of Streamline Common Stock.
3.2. EXCHANGE OF CERTIFICATES. As promptly as practicable after the
Effective Time, Streamline or its transfer agent will send to each stockholder
of the Company transmittal materials for use in exchanging their Certificates
for certificates for the shares of Streamline Common Stock into which such
shares of Company Common Stock have been converted. Upon surrender of a
Certificate to Streamline or its transfer agent, as the case may be, together
with a duly executed letter of transmittal and any other reasonably required
documents, the holder of such Certificate will be entitled to receive, in
exchange therefor, a certificate for the number of shares of Streamline Common
Stock to which such holder is entitled, and such Certificate will be canceled.
3.3. NO FRACTIONAL SHARES. In lieu of the issuance of fractional shares
of Streamline Common Stock, cash adjustments will be paid (without interest) to
the Company's stockholders in respect of any fractional share of Streamline
Common Stock that would otherwise be issuable to them and the amount of such
cash adjustments will be determined by multiplying each relevant holder's
fractional interest by $3.50 (such amount to be proportionately adjusted to
reflect stock splits, stock dividends, reverse stock splits, and other
recapitalizations, reorganizations, and similar events affecting Streamline
Common Stock and occurring after the date of this Agreement). For purposes of
determining whether, and in what amounts, a particular stockholder of the
Company would be entitled to receive cash adjustments under this section, shares
held of record by such holder and represented by two or more Certificates will
be aggregated.
3.4. TERMINATION OF RIGHTS. After the Effective Time, holders of
Company Common Stock will cease to be, and will have no rights as, stockholders
of the Company, other than (i) in the case of shares other than Dissenting
Shares, the rights to receive shares of Streamline Common Stock into which such
shares have been converted and/or payments in lieu of fractional shares, as
provided in this Agreement, and (ii) in the case of Dissenting Shares, the
rights afforded to the holders thereof under Section 262 of the DGCL.
3.5. LOST CERTIFICATES, ETC. In the event that any Certificate has been
lost, stolen, or destroyed, then upon receipt of appropriate evidence as to such
loss, theft, or destruction, and to the ownership of such Certificate by the
person
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claiming such Certificate to be lost, stolen, or destroyed, and the receipt by
Streamline or its transfer agent for Streamline Common Stock of appropriate and
customary indemnification, Streamline or such transfer agent will issue in
exchange for such lost, stolen, or destroyed Certificate the shares of
Streamline Common Stock and the fractional share payment, if any, deliverable in
respect thereof as determined in accordance with this Agreement.
4. COMPANY WARRANTS. After the Effective Time, each warrant to purchase
shares of Company Common Stock that is outstanding immediately before the
Effective Time and listed SCHEDULE 4 (a "Company Warrant") will be deemed to be
a warrant to purchase from Streamline up to a number of whole shares of
Streamline Common Stock equal to the product of (i) the number of shares of
Company Common Stock subject to such Company Warrant, multiplied by (ii) the
Exchange Ratio, at a price per share of Streamline Common Stock determined by
dividing the exercise price per share of Company Common Stock provided for in
such Company Warrant by the Exchange Ratio. No scrip or fractional share
interests will be issued in connection with the exercise of any Company Warrant.
Except for the foregoing, each Company Warrant will remain subject after the
Effective Time to the same terms and conditions (including without limitation
those with respect to dates on which and the proportionate extent to which such
Company Warrant may be exercised) as were applicable to such Company Warrant
immediately before the Effective Time.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Streamline and Merger Sub
as follows:
5.1. AUTHORIZATION AND ENFORCEABILITY. The Company has all requisite
power and full legal right and authority (including due approval of its Board of
Directors and stockholders) to enter into this Agreement, to perform all of its
agreements and obligations hereunder, and to consummate the transactions hereby
contemplated to be consummated by it. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid, and binding obligation
of the Company, enforceable against it in accordance with its terms, except as
enforceability may be subject to the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization, marshaling, or
other similar laws or rules of law affecting creditors' rights and remedies
generally, and to general principles of equity.
5.2. GOVERNMENTAL AND OTHER THIRD-PARTY CONSENTS, NON-CONTRAVENTION,
ETC. Except as set forth on SCHEDULE 5.2 hereto, no consent, approval, or
authorization of or registration, designation, declaration, or filing with any
governmental authority, federal or other, or any other person is required on the
part of the Company in connection with this Agreement, the
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Merger, or any of the other transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation by the Company
of such transactions will not violate (a) any provision of its Certificate of
Incorporation or by-laws, (b) any order, judgment, injunction, award or decree
of any court or state or federal governmental or regulatory body applicable to
the Company, or (iii) any judgment, decree, order, statute, rule, regulation,
agreement, instrument, or other obligation to which the Company is a party or by
or to which it or any of its assets is bound or subject.
5.3. DISCLOSURE. No representation or warranty of the Company in this
Agreement or in any other agreement, instrument, certificate, or other document
delivered by the Company in connection with this Agreement, the Merger, or any
of the other transactions contemplated hereby contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact required to be stated therein or necessary to make the statements contained
therein not false or misleading.
6. REPRESENTATIONS AND WARRANTIES OF STREAMLINE AND MERGER SUB.
Each of Streamline and Merger Sub hereby represents and warrants to the
Company as follows:
6.1. AUTHORIZATION AND ENFORCEABILITY. Such corporation has all
requisite power and full legal right and authority (including due approval of
its Board of Directors and stockholders, as applicable) to enter into this
Agreement, to perform all of its agreements and obligations hereunder, and to
consummate the transactions hereby contemplated to be consummated by it. This
Agreement has been duly executed and delivered by such corporation and
constitutes a legal, valid, and binding obligation of such corporation,
enforceable against it in accordance with its terms, except as enforceability
may be subject to the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization, marshaling, or other similar
laws or rules of law affecting creditors' rights and remedies generally, and to
general principles of equity.
6.2. GOVERNMENTAL AND OTHER THIRD-PARTY CONSENTS, NON-CONTRAVENTION,
ETC. No consent, approval, or authorization of or registration, designation,
declaration, or filing with any governmental authority, federal or other, or any
other person is required on the part of such corporation in connection with this
Agreement, the Merger, or any of the other transactions contemplated hereby,
except that Streamline expects to file a Form D with the Securities and Exchange
Commission following the consummation of the Merger. The execution, delivery,
and performance of this Agreement and the consummation by such corporation of
such transactions will not violate (a) any provision of its Certificate of
Incorporation or by-laws, (b) any order, judgment,
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injunction, award or decree of any court or state or federal governmental or
regulatory body applicable to such corporation, or (iii) any judgment, decree,
order, statute, rule, regulation, agreement, instrument, or other obligation to
which such corporation is a party or by or to which it or any of its assets is
bound or subject.
6.3. DISCLOSURE. No representation or warranty of such corporation in
this Agreement or in any other agreement, instrument, certificate, or other
document delivered by such corporation in connection with this Agreement, the
Merger, or any of the other transactions contemplated hereby contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact required to be stated therein or necessary to make the statements
contained therein not false or misleading.
7. MUTUAL COVENANTS.
7.1. TAX-FREE REORGANIZATION TREATMENT. No party will take or cause or
permit to be taken any action, whether before or after the Effective Time, that
would disqualify the Merger as a "reorganization" within the meaning of Section
368 of the Code.
7.2. TAX MATTERS. The parties understand and agree that none of them is
making any representation or warranty with respect to the tax consequences of
this Agreement, the Merger, or the other transactions contemplated hereby. The
parties intend, however, that the Merger constitute a "tax-free reorganization"
under Section 368 of the Code, and agree to report the Merger as such on their
respective tax returns.
7.3. FURTHER ASSURANCES. Subject to the terms and conditions set forth
in this Agreement, from time to time both before and after the Effective Time,
each of the parties will use his or its best reasonable efforts, as promptly as
is practicable to take or cause to be taken all actions, and to do or cause to
be done all other things, as are necessary, proper, or advisable to consummate
and make effective the Merger and the other transactions contemplated hereby.
8. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligations of the
Company to consummate the Merger are subject to the satisfaction (or waiver by
the Company, in its sole discretion) of each of the conditions set forth in this
section on or before the Closing Date. If the Merger is consummated, such
conditions will conclusively be deemed to have been satisfied or waived.
8.1. STOCKHOLDER APPROVAL. The requisite number of stockholders of the
Company shall have approved the Merger.
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8.2. REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of Streamline and Merger Sub contained in this Agreement shall be
true and correct as of the date hereof and as of the Closing Date as though made
on and as of the Closing Date.
8.3. COMPLIANCE WITH AGREEMENT. Streamline and Merger Sub shall have
performed and complied in all material respects with all of their respective
obligations under this Agreement to be performed or complied with by them before
or at the Closing, including without limitation the execution and delivery of
all documents to be executed and delivered by any of them in connection with
this Agreement and/or the consummation of the Merger and the other transactions
contemplated hereby.
9. CONDITIONS TO STREAMLINE'S AND MERGER SUB'S OBLIGATIONS. The
obligations of each of Streamline and Merger Sub, respectively, to consummate
the Merger are subject to the satisfaction (or waiver by Streamline, in its sole
discretion) of each of the conditions set forth in this section on or before the
Closing Date. If the Merger is consummated, such conditions will conclusively be
deemed to have been satisfied or waived.
9.1. STOCKHOLDER APPROVAL. The requisite number of stockholders of the
Company shall have approved the Merger.
9.2. STOCKHOLDER AND WARRANT HOLDER DOCUMENTATION. Each stockholder and
warrant holder of the Company shall have executed and delivered to Streamline an
Investor Questionnaire in the form attached as EXHIBIT C hereto and an
Instrument of Representations in the form attached as EXHIBIT D hereto, and each
such Investor Questionnaire and Instrument of Representations shall be
acceptable to Streamline. Additionally, each warrant holder of the Company shall
have executed and delivered to Streamline a Contingent Agreement to Exchange
Warrant in the form attached as EXHIBIT E hereto, and each such Contingent
Agreement to Exchange Warrant shall be acceptable to Streamline.
9.3. REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Company contained in this Agreement shall be true and correct
as of the date hereof and as of the Closing Date as though made on and as of the
Closing Date.
9.4. COMPLIANCE WITH AGREEMENT. The Company shall have performed and
complied in all material respects with all of their respective obligations under
this Agreement to be performed or complied with by them before or at the
Closing, including without limitation the execution and delivery of all
documents to be executed and delivered by any of them in connection with
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this Agreement and/or the consummation of the Merger and the other transactions
contemplated hereby.
9.4 NO DISSENTING SHARES. There shall be no holders of Dissenting
Shares as of or immediately prior to the Effective Time.
10. TERMINATION.
(a) This Agreement may be terminated at any time before the Effective
Time by agreement of Streamline and the Company, notwithstanding the approval of
this Agreement and/or of the Merger by the stockholders of any party.
(b) If (i) any temporary restraining order, preliminary or permanent
injunction, or other order issued by any court of competent jurisdiction, or
other binding legal restraint or prohibition preventing the consummation of the
Merger or the other transactions contemplated hereby is at any time in effect
for a period of more than 20 consecutive days, or (ii) the Closing does not
occur on or before March 31, 1999, then either Streamline or the Company may
terminate this Agreement by delivering written notice to the other at any time
after the close of business on date such termination right arises hereunder,
PROVIDED that such failure to close is not the result of a breach of this
Agreement by the terminating party (including, in the case of any such
termination by Streamline, any breach by Merger Sub.
(c) Any termination of this Agreement will not affect the rights or
obligations of any party arising, or based on actions or omissions occurring,
before such termination. The provisions of Section 11 ("General") will survive
any termination of this Agreement.
11. GENERAL.
11.1. COOPERATION. Each of the parties will cooperate with the others
and use its best reasonable efforts to prepare all necessary documentation, to
effect all necessary filings, and to obtain all necessary permits, consents,
approvals, and authorizations of all governmental bodies and other third parties
necessary to consummate the transactions contemplated by this Agreement.
11.2. EXPENSES. The parties to this Agreement will be responsible for
and will pay all of their own respective expenses in connection with the
negotiation and preparation of this Agreement and the consummation of the Merger
and the other transactions contemplated hereby; provided that, in the event of
any litigation or arbitration of any dispute related to or arising out of this
Agreement, each prevailing party shall be entitled to recover from the
non-
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prevailing party or parties all of such prevailing party's reasonable costs and
expenses in connection therewith.
11.3. BENEFITS OF AGREEMENT; NO ASSIGNMENTS; NO THIRD-PARTY
BENEFICIARIES.
(a) This Agreement will bind and inure to the benefit of the parties
hereto and their respective heirs, successors, and permitted assigns.
(b) No party will assign any rights or delegate any obligations
hereunder without the consent of the other parties, and any attempt to do so
will be void.
(c) Nothing in this Agreement is intended to or will confer any rights
or remedies on any person other than the parties hereto and their respective
heirs, successors, and permitted assigns, except as expressly provided in this
Section 11.
11.4. NOTICES. All notices, requests, payments, instructions, or other
documents to be given hereunder will be in writing or by written
telecommunication, and will be deemed to have been duly given if (i) delivered
personally (effective upon delivery), (ii) mailed by registered or certified
mail, return receipt requested, postage prepaid (effective five business days
after dispatch), (iii) sent by a reputable, established courier service that
guarantees next business day delivery (effective the next business day), or (iv)
sent by telecopier followed within 24 hours by confirmation by one of the
foregoing methods (effective upon receipt of the telecopy in complete, readable
form), if delivered to the most recent address and/or telecopier number provided
by the party being notified to the party giving notice.
11.5. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered will be an
original, but all of which together will constitute one and the same agreement.
In pleading or proving this Agreement, it will not be necessary to produce or
account for more than one such counterpart.
11.6. EQUITABLE RELIEF. Each of the parties hereby acknowledges that
any breach by him or it of his or its obligations under this Agreement would
cause substantial and irreparable damage to the parties, and that money damages
would be an inadequate remedy therefor, and accordingly, acknowledges and agrees
that each other party will be entitled to an injunction, specific performance,
and/or other equitable relief to prevent the breach of such obligations.
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11.7 WAIVERS. No waiver of any breach or default hereunder will be
valid unless in a writing signed by the waiving party. No failure or other delay
by any party exercising any right, power, or privilege hereunder will be or
operate as a waiver thereof, nor will any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege.
11.8 ENTIRE AGREEMENT. This Agreement, together with the exhibits and
schedules hereto and the other agreements, instruments, certificates, and other
documents referred to herein as having been or to be executed and delivered in
connection with the transactions contemplated hereby, contains the entire
understanding and agreement among the parties, and supersedes any prior
understandings or agreements among them, or between or among any of them, with
respect to the subject matter hereof.
11.9. GOVERNING LAW. This Agreement will be governed by and interpreted
and construed in accordance with the internal laws of the Commonwealth of
Massachusetts, as applied to contracts under seal made, and entirely to be
performed, within Massachusetts, and without reference to principles of
conflicts or choice of laws.
11.10. AMENDMENT. This Agreement may not be amended, modified, or
supplemented except by a writing duly executed by Streamline, Merger Sub and the
Company.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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Executed and delivered under seal as of the date first above written.
STREAMLINE: STREAMLINE, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
MERGER SUB: STREAMLINE ACQUISITION SUB, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
COMPANY: STREAMLINE MID-ATLANTIC, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
