Exhibit 10.16
STREAMLINE, INC.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of September
18, 1998, is by and among Streamline, Inc., a Delaware corporation (the
"Company"), and Nordstrom, Inc., a Washington corporation (the "Investor").
WITNESSETH:
WHEREAS, subject to the terms and conditions set forth herein, the
Company desires to issue and sell to the Investor, and the Investor desires to
purchase from the Company 228,570 shares of the Company's Series D Convertible
Preferred Stock, par value $1.00 per share (the "Series D Preferred"), for a
purchase price of $22,857,000, 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 to the
Certificate of Incorporation of the Company, substantially in the form attached
hereto as EXHIBIT A.
"Closing" and "Closing Date" shall have the respective meanings set
forth in Section 2.1.
"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.
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"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, 1997 and (ii)
an unaudited balance sheet and statement of operations and cash flows of the
Company as, at and for the eight month period ending August 31, 1998.
"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, Series C Preferred, and Series D
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.
"Investor" 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.
"Preferred Stock" shall mean Series A Preferred, Series B Preferred and
Series C Preferred and Series D Preferred Stock.
"Registration Rights Agreement" shall mean a Registration Rights
Agreement, substantially in the form attached as EXHIBIT B hereto.
"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.
"Senior Discount Notes" shall have the meaning set forth in Section
3.21.
"Series B Preferred" shall have the meaning set forth in Section 3.4.
"Series C Preferred" shall have the meaning set forth in Section 3.4.
"Series D Preferred" shall have the meaning set forth in the recitals.
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"Shareholders Agreement" shall mean a Shareholders Agreement,
substantially in the form attached as EXHIBIT C hereto.
"Shares" shall mean the Series D Preferred.
ARTICLE 2. PURCHASE AND SALE; CLOSING.
SECTION 2.1. CLOSING.
(a) Subject to the terms and conditions set forth herein, the
Company hereby agrees to issue and sell to the Investor, and the Investor hereby
agrees to purchase from the Company, at the Closing the 228, 570 shares of
Series D Preferred for a purchase price of $22,857,000.
(b) Subject to the satisfaction or waiver of the terms and
conditions set forth herein, the purchase and sale of the Shares shall take
place at the offices of Xxxxxxx Xxxx 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 Investor mutually agree orally or in
writing (which time and place are designated herein as the "Closing" and the
date thereof as the "Closing Date"). At the Closing, the Company shall deliver
to the Investor a certificate representing the Shares 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 the Investor at least two business days prior to the
Closing Date.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Investor 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 Investor. The copies
provided to the Investor 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
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SECTION 3.2. AUTHORIZATION OF AGREEMENTS, ETC.
(a)(i) Each of (i) the execution, delivery and performance by
the Company of this Agreement, the Shareholders Agreement and the Registration
Rights Agreement, and (ii) the issuance, sale, and delivery of the Shares to the
Investor 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
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 D 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 45,400,000 shares of
Common Stock, of which 7,009,064 shares are issued and outstanding, 680,000
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 Convertible Preferred Stock ("Series B
Preferred"), of which 80,000 shares are issued and outstanding, (iii) 100,000
shares have been designated as Series C Preferred, of which 10,000 shares are
issued and outstanding, and 378,570 shares of Series D
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Preferred, none of which is issued and outstanding prior to Closing. At the
Closing, 228,570 shares of Series D Preferred shall have been, or shall be,
issued to the Investor.
(b) Except for (i) options to purchase, in the aggregate, 1,900,000 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 purchase, in the aggregate,
341,714 shares of Common Stock, for an exercise price of $3.50 per share, issued
or issuable to Intel Corporation, (iv) warrants to purchase, in the aggregate,
285,714 shares of Common Stock, for an exercise price of $3.50 per share with
respect to twenty-five percent (25%) of such shares and at an exercise price
equal to or greater than $4.20 with respect to the remaining seventy-five
percent (75%) of such shares (in accordance with the exercise price adjustments
set forth in such warrant issued or issuable to General Electric Capital
Corporation, (v) warrants (the "DDJ Warrants") to purchase, in the aggregate,
850,000 shares of Common Stock, for an exercise price of $3.50 per share, issued
to the parties identified on SCHEDULE 3.4 hereto, (vi) the Senior Discount
Notes, (vii) non-negotiable convertible notes, having an aggregate principal
face value of $600,000, issued to the parties identified on SCHEDULE 3.4 hereto,
(viii) the issuance of the Shares pursuant to the terms hereof and (ix) an
aggregate of 10,000 shares of Common Stock to be issued by the Company to the
holders of the DDJ Warrants in accordance with the arrangement described on
Schedule 3.4 hereto, 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 properties and assets reflected on the balance sheets set forth on SCHEDULE
3.12 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
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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, state or local
governmental authority or (ii) any party to any contract identified on SCHEDULE
3.8, is required in connection with the transactions contemplated by this
Agreement, 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 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,
authorization, registration, qualification, designation, declaration or filing
that may be required on the part of the Investor as a result of the 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, consulting and independent contractor
agreements, employee benefit, bonus, pension, profit-sharing, stock option,
stock purchase and similar plans and arrangements, (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
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(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 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 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
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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.
(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, 1997 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 and Section 3.14 hereof, "material" and "materially" 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, 1997, 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 June 30, 1998, 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
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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.
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 any 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
Investor), 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
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Company's knowledge, threatened labor disagreement involving the Company and any
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.
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 (i) to redeem the Senior Discount
Notes of the Company, due April 15, 2001 (the "Senior Discount Notes") having an
aggregate principal face value of $7,770,000, issued pursuant to the Securities
Purchase Agreement dated April 15, 1998 by and among the Company and the
"Investor" parties identified therein and (ii) for working capital and continued
development of the Company's business model.
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.
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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.
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
Investor 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 Investor 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.
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ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor represents and warrants to the Company, that:
SECTION 4.1. ACCREDITED INVESTOR: AUTHORIZATION, ETC. The 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. The 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. The 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 the
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. The 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 and the
shares of Common Stock issuable upon conversion thereof, 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 THE INVESTOR. The
obligations of the Investor to purchase the Shares hereunder are subject to the
satisfaction or the waiver by the 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;
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(b) The Chief Executive Officer of the Company shall have delivered to
the Investor at the Closing a certificate stating that the conditions specified
in paragraph (a) above been fulfilled;
(c) The Company shall have delivered to the Investor 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 Investor the opinion of
Xxxxxxx Xxxx LLP, counsel for the Company, dated the date of the Closing,
substantially in form attached as EXHIBIT D hereto;
(e) The Company and the Investor 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) The Company and holders of the requisite number of outstanding
shares of Series A, Preferred Series B Preferred and/or Series C Preferred shall
enter into an amendment substantially in the form attached as EXHIBIT E to the
Series A Preferred Stock Purchase Agreement, dated May 15, 1996, by and among
the Company, Reliance Insurance Company and Xxxxxxx X. XxXxxxx and the Stock
Purchase Agreement, dated June 13, 1997 by and among the Company and the
Investor defined therein, as applicable.
(h) 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 the 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 the 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. The Company will deliver
to the 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
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statements of operations, stockholders' equity and changes in cash flow of the
Company for such period and (in the case of the second and third quarterly
periods) for the period from the beginning of the current fiscal year to the end
of such quarterly period, setting forth in each case in comparative form the
figures for the corresponding periods of the previous fiscal year;
(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 Investor 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. BOOKS AND RECORDS; INSPECTION. The Company shall maintain
proper books of record and account which present fairly in all material respects
its financial condition and results of operations and make provision on its
financial statements for all such proper
-15-
reserves as in each case are required in accordance with GAAP, consistently
applied. From and after the Closing Date, the Company will permit any authorized
representative of the Investor to visit and inspect any of the properties 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 the 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 Investor 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. PAYMENT OF TAXES. The Company will pay and discharge
promptly, or cause to be paid and discharged promptly, when due and payable, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or upon any of its property, real, personal and mixed, or upon any
part thereof, as well as all claims of any kind (including claims for labor,
materials and supplies), which, if unpaid, might by law become a lien or charge
upon its property; PROVIDED, however, that the Company shall not be required to
pay any tax, assessment, charge, levy or claim if the amount, applicability or
validity thereof shall currently be contested in good faith by appropriate
proceedings and if the Company shall have set aside on its books reserves deemed
by it adequate with respect thereto.
SECTION 6.5. CORPORATE EXISTENCE. The Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, and material rights and franchisees, provided, however,
that nothing in this section shall (A) prevent the abandonment or termination of
the Company's authorization to do business in any foreign state or jurisdiction
if, in the opinion of the Company's Board of Directors, such abandonment or
termination is in the interest of the Company or (B) require compliance with any
law so long as the validity or applicability thereof shall be disputed or
contested in good faith.
SECTION 6.6. PROPERTIES, BUSINESS, INSURANCE. The Company shall
maintain with respect to their its properties and business, with financially
sound and reputable insurers, insurance 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 against such casualties and contingencies and of such types and in
such amounts as is customary for reasonable and prudent companies similarly
situated.
SECTION 6.7. APPLICABLE LAWS. The Company shall comply in all material
respects with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the
-16-
conduct of their respective businesses and the ownership of their respective
properties, except such as are being contested in good faith and by appropriate
proceedings and except for such noncompliance as would not in the aggregate have
a material adverse effect.
SECTION 6.8. KEY MAN INSURANCE. For a period of five years after the
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 6.9. XXXX-XXXXX-XXXXXX FILING. The Company will file and pay
all filing fees of the Investor, if any, relating to any Xxxx-Xxxxx-Xxxxxx
filing required in order for such Investor to convert its Shares into Common
Stock.
SECTION 6.10. 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 6.11. NEGATIVE COVENANTS. So long as any shares of Series D
Preferred are outstanding, the Company shall not take any of the actions listed
in Subparagraphs (a) through (i) of Section B.6.4 of the Certificate of
Amendment, PROVIDED, HOWEVER, that if the Company shall not have received such
written consent or evidence of such affirmative vote within 10 business days,
then (i) the Company shall nonetheless be entitled to take such action and (ii)
a "Disapproval Event" (as defined in Section B.6.4 of the Certificate of
Amendment) shall be deemed to have occurred.
SECTION 6.12. EXPENSES OF DIRECTOR. The Company shall promptly
reimburse in full each person servicing as a director of the Company or as an
observer of meetings of the Board of Directors of the Company or any committee
thereof, who is not also an employee of the Company and who was elected or
designated, as applicable, as a director or observer by the holders of Series D
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 or observer may request.
SECTION 6.13. PRESS RELEASES AND FILINGS. For so long as the Investor
and its Affiliates collectively continue to own, in the aggregate at least 10%,
on a Fully Diluted Basis, of the shares of Common Stock issued or issuable upon
conversion of the Shares (or shares of Common Stock issued upon conversion
thereof), the Company covenants and agrees to provide the 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 6.14. 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 ten percent (10%), 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.
-17-
SECTION 6.15. 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 6.16. DIRECTORS AND OFFICERS INSURANCE. The Company shall
obtain, within thirty (30) days of the Closing Date, and maintain a valid policy
of directors and officers insurance, with coverage and terms mutually agreeable
to the Company and Nordstrom.
SECTION 6.17. TERMINATION OF COVENANTS. The covenants of the Company
contained in Sections 6.1 to 6.11, 6.14 and 6.17 shall terminate, and be of no
further force or effect, upon the Company's first public offering of Common
Stock at a price per share of at least $4.00 (subject to appropriate adjustments
for stock splits, stock dividends, combinations and other similar
recapitalizations affecting such shares), resulting in gross proceeds to the
Company of at least $25,000,000.
ARTICLE 7. LEGEND.
The Investor understands that the certificate or certificates
evidencing the Shares purchased by the 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 Investor 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
-18-
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
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
(b) if to the Investor:
Nordstrom, Inc.
0000 0xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: J. Xxxxxx Xxxxxxxxx
with a copy to:
Xxxx Xxxxxx Xxxxxx Lubersky LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: D. Xxxxx Xxxxxxxxx, Esq.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
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.
-19-
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
the Investor 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 D
Preferred.
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
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 the purchased hereunder. Each party
hereto further agrees 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 other party otherwise agrees in writing. The
Company further agrees that there shall be no press release or other public
statement issued by the Company which uses the name "Nordstrom", unless
Nordstrom otherwise agrees 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
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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. 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]
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
INVESTOR:
NORDSTROM, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxxx
EXHIBITS
Exhibit A - Certificate of Amendment
Exhibit B - Registration Rights Amendment
Exhibit C - Shareholders Agreement
Exhibit-D - Opinion
Exhibit E - Waiver and Modification Agreement
SCHEDULES
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 Undisclosed Liabilities
Schedule 3.14 - Absence of Changes
Schedule 3.15 - Litigation
Schedule 3.17 - Employee Matters
Schedule 3.18 - ERISA
Schedule 3.20 - Subsidiaries
Schedule 3.24 - Registration Rights
