REGISTRATION RIGHTS AND CO-SALE AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of April
15, 1998, by and among Streamline, Inc. a Delaware corporation (the "Company"),
the stockholders and optionholders of the Company named on Exhibit A hereto (the
"Stockholders"), Mellon Bank, N.A., solely in its capacity as Trustee for
General Motors Employees Domestic Group Pension Trust, and not in its individual
capacity, DDJ Canadian High Yield Fund, and each other person that becomes a
party to this Agreement (collectively, the "Investors"). PREAMBLE
WHEREAS, the Investors have purchased warrants to purchase up to an
aggregate of 850,000 shares (the "Warrants") of the Company's Common Stock, par
value $0.01 per share, pursuant to the terms of that certain Securities Purchase
Agreement dated April 15, 1998, by and among the Company and the Investors (the
"Securities Purchase Agreement") and pursuant to the terms of that certain
Warrant Agreement of even date herewith, by and among the Company and the
Investors (the "Warrant Agreement");
WHEREAS, it is a condition precedent to the consummation by the Investors
of all of their respective obligations under the Securities Purchase Agreement
that the Company and the Investors enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. In addition to those terms defined elsewhere in this
Agreement. the following terms as used herein shall have the following meanings:
"AFFILIATE" shall mean, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such first-named Person. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlled by" and "under
common control with") shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person. whether through the ownership of voting securities or by contract or
otherwise.
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"COMMISSION" shall mean the U.S. Securities and Exchange Commission.
"COMMON STOCK" shall mean the common stock, par value $.01 per share, of
the Company.
"EXCHANGE ACT" shall. mean the Securities Exchange Act of 1934, as amended.
"PERMITTED TRANSFEREE" shall mean, with respect to any Investor, any
Affiliate of such Investor or any other Person that purchases or otherwise
acquires all or a portion of the Warrants of such Investor (or shares of Common
Stock issued upon the exercise thereof). References to Investors herein shall
include Permitted Transferees.
"PERSON" shall mean an individual, partnership, corporation, association,
trust joint venture, unincorporated organization, and any government;
governmental department or agency or political subdivision thereof.
"REGISTRABLE SHARES" shall mean, with respect to each Investor (or its
Permitted Transferee), any or all of the shares of Common Stock issued upon
exercise of those certain warrants issued by the Company to such Investor on the
date hereof; PROVIDED, HOWEVER, that, except for purposes of Section 10 hereof,
such securities shall cease to be Registrable Shares when the holder of such
Registrable shares would be entitled to sell all of such securities within a
three-month period pursuant to the provisions of Rule 144.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act and any
successor or substitute rule, law or provision.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933, as amended.
"TRANSFER" means any direct or indirect transfer, donation, sale,
assignment, pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any portion of a security or of any
rights. "Transferred" means the accomplishment of a Transfer and "Transferee"
means the recipient of Registrable Shares in a Transfer.
2. DEMAND REGISTRATION RIGHTS.
2.1. REGISTRATION UPON REQUEST. Subject to the provisions of Section 2.4
below, at any time or from time to time, Investors holding thirty (30) percent
of the Registrable Shares then outstanding may notify the
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Company in writing that such Investors desire for the Company to cause all or a
portion of the Registrable Shares to be registered under the Securities Act
pursuant to this Section 2.1. Thereafter, the Company shall promptly give to
each Investor written notice of such demand for registration. Upon the written
request of any Investor given within ten days after the giving of any such
notice by the Company, the Company shall use its best efforts to cause to be
included in such registration the Registrable Shares of such Investor, to the
extent requested to be registered. Thereafter, subject to the conditions,
limitations and provisions set forth below in Sections 2.3. 2.4 and 5, the
Company shall promptly prepare and file. and use its best efforts to prosecute
to effectiveness, an appropriate filing with the Commission of a registration
statement covering all of those Registrable Shares with respect to which
registration under the Securities Act has been requested by the requesting
Investors: PROVIDED that, if the Company has previously been given a notice of
the type specified in this Section 2 or 4.1 the Company is not at such time
continuing to pursue the registration referred to in such notice. Subject to the
provisions of Section 2.3 below, the Company may include in any registration
pursuant to this Section 2.1 additional shares of Common Stock for sale for its
own account or for the account of any other Person.
2.2. SELECTION OF UNDERWRITERS. If a registration pursuant to Section 2.1
involves an underwritten offering, the underwriter or underwriters thereof shall
be selected, after consultation with the Company, by the Investors who own the
Registrable Shares being so registered, PROVIDED that such underwriter or
underwriters shall be acceptable to the Company. The Company covenants that it
shall not unreasonably withhold its acceptance of any such underwriter or
underwriters.
2.3. PRIORITY OF DEMAND REGISTRATIONS. If a registration pursuant to
Section 2.1 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration by the
Investors, pro rata among the Investors on the basis of the number of
Registrable Shares requested to be registered in such registration and (ii)
second, the other shares of Common Stock of the Company proposed to be included
in such registration, in accordance with the priorities, if any, then existing
among the Company and the holders of such other securities.
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2.4. LIMITATION ON REGISTRATIONS. The Company shall not be required to
effect more than two (2) registrations pursuant to Section 2. 1.
2.5. LIMITATION ON REQUEST. Notwithstanding anything in this Section 2 to
the contrary, the Investor may not request a registration pursuant to Section
2.1 during (i) the 180-day period following the closing of the Company's initial
public offering, (ii) the 180-day period following the effective date of any
registration statement filed in connection with a registration pursuant to
Section 2.1 or 4.1 or (iii) the 90-day period following the effective date of
any registration statement filed in connection with a registration pursuant to
Section 3. For purposes of this Agreement, a registration shall be deemed to
have been effected by the Company if the registration statement relating thereto
has been declared effective by the Commission or if such registration statement,
after having been filed with the Commission, is, through no fault of the
Company, withdrawn, abandoned or otherwise not declared effective within sixty
(60) days of the filing thereof.
3. PIGGYBACK REGISTRATION RIGHTS.
3.1. REGISTRATION. If at any time after the Company's initial public
offering, the Company proposes to register any of its Common Stock under the
Securities Act, whether for its own account or for the account of any
stockholder of the Company or pursuant to registration rights granted to holders
of securities of the Company (but excluding in all cases any registrations
pursuant to Sections 2 or 4 hereof or any registrations to be effected on Forms
S-4 or S-8 or any applicable successor Forms), the Company shall, each such
time, give to each Investor written notice of its intent to do so. Upon the
written request of any Investor given within ten days after the giving of any
such notice by the Company, the Company shall use its best efforts to cause to
be included in such registration the Registrable Shares of such Investor. to the
extent requested to be registered, subject to Section 3.2; PROVIDED that (i) the
number of Registrable Shares proposed to be sold by such Investor is equal to at
least twenty-five percent (25%) of the total number of Registrable Shares held
by such Investor. and (ii) such Investor agrees to sell those of its Registrable
Shares to be included in such registration in the same manner and on the same
terms and conditions as the other shares of Common Stock which the Company
purposes to register.
3.2. PRIORITY OF THE COMPANY SHARES. In connection with any offering
involving an underwriting of shares being issued by the Company or being sold
pursuant to any demand registration rights of any stockholder of the Company,
the Company shall not be required under Section 3.1 to include the Registrable
Shares of any Investor therein unless such Investor accepts and agrees to the
terms of the underwriting as agreed upon between the
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Company and/or the stockholder(s) exercising demand registration rights, as
applicable, and the underwriters selected by the Company and/or such
stockholders, and then only in such quantity as (without any reduction in the
numbers of shares to be sold for the account of the Company and any such
stockholders) will not, in the opinion of the underwriters, jeopardize the
success of the offering by the Company. If the total number of shares of Common
Stock which all selling stockholders of the Company, including any Investors,
request to be included in any offering exceeds the number of shares which the
underwriters believe to be compatible with the success of the offering, the
Company shall only be required to include in the offering so many of shares of
stockholders (including any Investors) exercising piggyback registration rights,
pro rata among the Investors and other stockholders exercising piggyback
registration rights on the basis of the number of shares requested to be
registered in such registration, as the underwriters believe will not (without
any reduction in the number of shares to be sold for the account of the Company
and any stockholder(s) exercising demand registration rights) jeopardize the
success of the offering.
4. FORM S-3 REGISTRATION.
4.1. REGISTRATION UPON REQUEST. In the event that the Company shall receive
from Investors holding twenty (20) percent of the Registrable Shares then
outstanding a written request or requests that the Company effect a registration
on Form S-3 (or any applicable successor Form) with respect to all or a part of
the Registrable Shares owned by such Investors, then the Company will promptly
use its best efforts to effect such registration of all or such portion of such
Investors' Registrable Shares as are specified in such request; PROVIDED that,
if the Company has been given a notice of the type specified in Section 2.1, 3
or this Section 4.1, the Company is not at such time continuing to pursue the
registration referred to in such notice. Promptly after receipt by the Company
of a notice requesting registration pursuant to this Section 4.1, the Company
shall give to each Investor written notice of such request for registration.
Upon the written request of any Investor giver, within ten days after the giving
of any such notice by the Company, the Company shall use its best efforts to
cause to be included in such registration the Registrable Shares of such
Investor, to the extent requested to be registered. Subject to Section 4.3, the
Company may include in any registration pursuant to this Section 4.1 additional
shares of Common Stock for sale for its own account or for the account of any
other Person. No registration under this Section 4.1 shall be underwritten
unless the Company shall otherwise elect in its sole and absolute discretion.
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4.2. SELECTION OF UNDERWRITERS. If a registration pursuant to Section 4.1
involves an underwritten offering, the underwriter or underwriters thereof shall
be selected by the Company.
4.3. PRIORITY OF DEMAND REGISTRATIONS. If a registration pursuant to
Section 4.1 involves an underwritten offering, and the managing underwriter
shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration, to the extent of the number of shares of Common Stock which the
Company is so advised can be sold in such offering, (i) first, the number of
Registrable Shares requested to be included in such registration by the
requesting Investors and (ii) second, the other shares of Common Stock of the
Company proposed to be included in such registration, in accordance with the
priorities, if any, then existing among the Company and the holders of such
other securities.
4.4. LIMITATION ON REQUESTS. Notwithstanding anything in this Section 4.5
to the contrary, the Investors may not request a registration pursuant to
Section 4.1 during (i) the 180-day period following the closing of the Company's
initial public offering, (ii) the 180-day period following the effective date of
any registration statement filed in connection with a registration pursuant to
Section 2.1 or 4.1 or (iii) the 90-day period following the effective date of
any registration statement filed in connection with a registration pursuant to
Section 3.
4.5. LIMITATION ON REGISTRATIONS. Notwithstanding anything to the contrary
in this Section 4, the Company shall not be required to effect any registration
pursuant to Section 4.1 unless the Registrable Shares to be so registered shall
have an aggregate proposed sale price of at least $350,000.
5. DEFERRAL. Notwithstanding anything to the contrary contained in this
Agreement, the Company's obligation to file a registration statement pursuant to
Xxxxxxx 0, 0 xx 0 xxxxx xx deferred for a period not to exceed 90 days in any
12-month period if the Company, in the good faith judgment of its Board of
Directors, reasonably believes that the filing thereof at the time requested
would materially adversely affect a pending or proposed public offering of
Common Stock, or any acquisition, merger, recapitalization, consolidation,
reorganization or similar transaction, or any negotiations. discussions or
pending proposals with respect thereto.
6. ADDITIONAL OBLIGATIONS OF THE COMPANY. Whenever the Company is required
under Section 2, 3 or 4 to use its best efforts to effect the registration of
any of the Registrable Shares of any Investor, the Company shall promptly:
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(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become and remain effective; PROVIDED, however
that the Company shall in no event be obligated to cause any such
registration to remain effective for more than 180 days:
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement;
(c) Furnish to such Investor such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as the Investor may reasonably
request in order to facilitate the disposition of such Registrable Shares;
and
(d) Use its best efforts to register and qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions
as shall be reasonably appropriate in the opinion of the Company and the
managing underwriters; PROVIDE that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions; and PROVIDED FURTHER that (anything in Section 8 to the
contrary notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall require that
expenses incurred in connection with the qualification therein of the
securities be borne by selling shareholders, then each Investor shall, to
the extent required by such jurisdiction, pay its PRO RATA share of selling
expenses.
7. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
any Investor requesting registration of any of such Investor's Registrable
Shares shall furnish to the Company such information regarding such Investor,
the Registrable Shares held by such Investor, the proposed plan of distribution
of such Registrable Shares, and any other information as the Company shall
reasonably request and as shall be required in order to effect any such
registration by the Company.
8. EXPENSES. All expenses incurred in connection with a registration
pursuant to this Agreement (excluding underwriting commissions and discounts and
counsel fees of any selling Investors), including without
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limitation all registration and qualification fees, printing costs, and fees and
disbursements of counsel for the Company, shall be borne by the Company;
PROVIDED, HOWEVER, that the Company shall not be required to pay for blue sky
registration or qualification expenses in connection with states in which the
Company is not registering or qualifying its original issue shares or
Registrable Shares of Investors upon exercise of their demand registration
rights.
9. INDEMNIFICATION. In the event that any Registrable Shares of any
Investor are included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless such Investor, any underwriter (as defined in the Securities
Act) for the Company, and each partner, member, officer, director, trustee,
stockholder, employee, agent and investment adviser of such Investor or
such underwriter and each Person, if any, who controls such Investor or
such underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, or is under common control with, or
is controlled by such Investor or underwriter, together with the partners,
members, officers, directors, trustees, stockholders, employees, agents and
investment advisors of such controlling person (collectively, the
"Controlling Persons") against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make
the statements therein not misleading; and will reimburse such Investor,
such underwriter or such partner, member, officer, director, trustee,
stockholder, employee, agent and investment adviser of such Investor or
underwriter or any Controlling Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, inability or action; PROVIDED, HOWEVER, that
the indemnity agreement contained in this Section 9. 1 (a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company
be liable in any such case for any such loss, damage, liability or action
to
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the extent that it primarily arises out of or is based upon an untrue
statement or alleged untrue statement or omission made in connection with
such registration statement, preliminary prospectus, final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by such Investor, any underwriter for such Investor, or any
partner, member, officer, director, trustee, stockholder, employee, agent
and investment adviser of such Investor or underwriter, or any Controlling
Person.
(b) To the extent permitted by law, such Investor will indemnify and
hold harmless the Company, each of its directors, each of its officers who
have signed such registration statement, each Person, if any, who controls
the Company within the meaning of the Securities Act, and any underwriter
for the Company (within the meaning of the Securities Act) against any
losses, claims, damages or liabilities to which the Company or any such
director, officer, controlling Person, or underwriter may become subject
to, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are
based upon any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary
prospectus contained therein or any amendments or supplements thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance upon
and in conformity with written information furnished by the Investor
expressly for use in connection with such registration; and the Investor
will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling Person, or underwriter
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 9.1(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such Investor against which
the request for indemnity is being made (which consent shall not be
unreasonably withheld). In no event shall the liability of any Investor
hereunder be greater in amount than the dollar amount of the net proceeds
received by such Investor upon the sale of the Registrable Shares giving
rise to such indemnification obligation.
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(c) Promptly after receipt by an indemnified party under this Section
9.1 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 9.1, notify the indemnifying party in writing of
the commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly
with any other indemnifying party similarly noticed, to assume at its
expense the defense thereof with counsel mutually satisfactory to the
parties. The failure to notify an indemnifying party promptly of the
commencement of any such action, if prejudicial to his ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 9.1 only if and to the extent such
failure to promptly notify was prejudicial to its ability to defend such
action, and the omission so to notify the indemnifying party will not
relieve the indemnifying party of any liability which he may have to any
indemnified party otherwise other than under this Section 9.1.
10. CO-SALE OPTIONS. Prior to an initial public offering of the Company's
Common Stock, in the event that any Stockholder ("a Transferring Stockholder")
receives a bona fide offer (a "Transaction Offer") to purchase all or any
portion of the shares of Common Stock held by such Transferring Stockholder (or
issuable upon the exercise of options or convertible securities held by such
Transferring Stockholder) from any other Person (the "Offeror"), such
Transferring Stockholder may Transfer such shares only pursuant to and in
accordance with the provisions of this Section 10.1. For purposes of this
Section 10, a Transfer shall not include a pledge, donation or hypothecation,
provided that the Person to which any shares of Common Stock are pledged,
donated or hypothecated agrees to be bound by the terms of this Section 10 as a
Stockholder, unless such requirement is waived in writing by the holders of a
majority of the Registrable Shares and shares of Common Stock issuable upon
exercise of the Warrants. Additionally, for purposes of this Section 10, a
Transfer shall not include a sale or sales by Xxxxxxx X. XxXxxxx of up to an
aggregate of 37,500 shares of Common Stock to Xxxxxx Xxx pursuant to that
certain agreement between Messrs. XxXxxxx and Kra dated October 28, 1996.
(a) Such Transferring Stockholder shall deliver written notice (the
"Offer Notice") of the terms of such Transaction Offer to each Investor
holding an aggregate of at least 50,000 Registrable Shares and shares of
Common Stock issuable upon the exercise of Warrants (subject to adjustment
for stock splits, stock dividends and the like) (a "Section 10 Investor").
The Offer Notice shall specify (i) the name and address of the Offeror,
(ii) the number of shares of Common Stock of the Transferring Stockholder
subject to the
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Transaction Offer (the "Offered Shares"), (iii) the consideration per share
to be paid for the Offered Shares, and (iv) all other material terms and
conditions of the Transaction Offer.
(b) Each Section 10 Investor shall have the right to participate in
the sale of Common Stock which is the subject of the Transaction Offer on
the terms and conditions herein stated (the "Co-Sale Option"), which right
shall be exercisable upon written notice (the "Acceptance Notice") to the
Transferring Stockholder within ten (10) days after the Transferring
Stockholder delivers the Offer Notice to the Section 10 Investors. The
Acceptance Notice shall indicate the maximum number of shares such Section
10 Investor wishes to sell (including the number of shares it would sell if
one or more other Section 10 Investors do not elect to participate in the
sale) on the terms and conditions stated in the Offer Notice.
Each of the Section 10 Investors shall have the right to sell a number of
Registrable Shares and shares of Common Stock issuable upon exercise of the
Warrants held by such Section 10 Investor pursuant to the Transaction Offer
which is equal to or less than (the exact amount to be determined by such
Section 10 Investor) the product obtained by multiplying (i) the total
number of Offered Shares subject to the Transaction Offer by (ii) a
fraction, the numerator of which is the total number of Registrable Shares
and shares of Common Stock issuable upon the exercise of Warrants held by
such Section 10 Investor on the date of the Acceptance Notice and the
denominator of which is the sum of the total number of Registrable Shares
and shares of Common Stock issuable upon the Exercise of Warrants then held
by all Section 10 Investors plus the number of shares of Common Stock held
by the Transferring Stockholder on the date of the Acceptance Notice. To
the extent one or more Section 10 Investors elect not to exercise their
Co-Sale Option, then the rights of the other Section 10 Investors (who
exercise their Co-Sale Option) to sell shares pursuant their Co-Sale Option
shall be increased proportionately by the full amount of shares which the
non-electing Section 10 Investors were entitled to sell pursuant to this
Section 10.1.
Within ten (10) days after the date by which the Section 10 Investors were
first required to notify the Transferring Stockholder of their intent to
exercise their Co-Sale Option, the Transferring Stockholder shall notify
each participating Section 10 Investor of the number of shares held by such
Section 10 Investor that will be included in the sale and the date on which
the Transaction Offer will be consummated, which shall be no later than the
later of (i) sixty (60) days after the date by which the Section 10
Investors were required to notify the Transferring Stockholder of their
intent to exercise their Co-Sale Option and (ii) the satisfaction of any
governmental approval or filing requirements, if any.
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Each of the Section 10 Investors participating in a sale under this Section
10.1 shall effect its participation in such sale hereunder by delivery to
the Offeror, in a timely manner, or to the Transferring Stockholder for
delivery to the Offeror, of one or more instruments or certificates,
properly endorsed for transfer, representing the Registrable Shares it
elects to sell therein, provided that no Section 10 Investor shall be
required to make any representations or warranties or provide any
indemnities in connection therewith other than with respect to the
Registrable Shares being conveyed. At the time of consummation of the sale
of Common Stock which is the subject of the Transaction Offer, the Offeror
shall remit directly to each such Section 10 Investor that portion of the
sale proceeds to which each Section 10 Investor is entitled by reason of
its participation therein.
11. LOCKUP. Each Investor hereby agrees that, at the written request of the
Company or any managing underwriter of any underwritten public offering of
securities of the Company, such Investor shall not, if such Investor holds more
than 5% of the outstanding Common Stock of the Company at the time of such
request (for this purpose, calculated on a fully diluted basis assuming full
exercise of all outstanding options, warrants, and other rights to acquire
shares of Common Stock and full conversion or exchange of all securities that
are convertible into or exchangeable for shares of Common Stock), without the
prior written consent of the Company or such managing underwriter, sell, make
any short sale of, loan, grant any option for the purchase of, pledge, encumber,
or otherwise dispose of, or exercise any registration rights with respect to,
any Common Stock during the 90-day period (or 180-day period in connection with
the Company's initial public offering of Common Stock) commencing on the
effective date of the registration statement relating to such underwritten
public offering of the Company's securities; PROVIDED, that each officer or
director of the Company and each holder of at least 5% of its Common Stock (for
this purpose, calculated on a fully diluted basis assuming full exercise of all
outstanding options, warrants, and other rights to acquire shares of Common
Stock and full conversion or exchange of all securities that are convertible
into or exchangeable for shares of Common Stock), shall have entered into a
similar agreement.
12. GENERAL.
12.1. ADDITIONAL REGISTRATION RIGHTS. Without the prior consent of
Investors holding a majority of the Registrable Shares then outstanding, the
Company shall not grant to any other holder of the Company's securities
registration rights that are superior to or in any way adversely affect the
registration rights granted to the Investors hereunder.
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12.2. REMEDIES. In case that any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement. The
rights, powers and remedies of the parties to this Agreement are cumulative and
not exclusive of any other right, power or remedy which such parties may have
under any other agreement or law. No single or partial assertion or exercise of
any right, power or remedy of a party hereunder shall preclude any other or
further assertion or exercise thereof.
12.3. ASSIGNMENT. None of the parties to this Agreement shall assign or
delegate any of their respective rights or obligations under this Agreement
without the prior written consent of each of the other parties hereto other than
in connection with a transfer of securities of the Company made to a Permitted
Transferee.
12.4. SURVIVAL. The rights and obligations of the parties hereto set forth
herein shall survive indefinitely, unless and until, by their respective terms,
they are no longer applicable.
12.5. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous arrangements or understandings with respect thereto.
12.6. NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or duly sent by first class, registered,
certified or overnight mail, postage prepaid, or telecopied with a confirmation
copy by regular mail, addressed or telecopied, as the case may be, to such party
at the address or telecopier number, as the case may be, set forth below or such
other address or telecopier number, as the case may be, as may hereafter be
designated in writing by the addressee to the addressor listing all parties:
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(i) If to the Company or a Stockholder, to:
Streamline, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
and (if applicable) such Stockholder
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(ii) If to an Investor, to the address of such Investor set forth on such
Investor's signature page to the Warrant Agreement
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others.
Any notice or other communication pursuant to this Agreement shall be
deemed to have been duly given or made and to have become effective (i) when
delivered in hand to the party to which it was directed, (ii) if sent by telex,
telecopier, facsimile machine or telegraph and properly addressed in accordance
with the foregoing provisions of this Section 12.6, when received by the
addressee, (iii) if sent by commercial courier guaranteeing next business day
delivery, on the business day following the date of delivery to such courier, or
(iv) if sent by first-class mail, postage prepaid, and properly addressed in
accordance with the foregoing provisions of this Section 12.6, (A) when received
by the addressee, or (B) on the third business day following the day of dispatch
thereof, whichever of (A) or (B) shall be the earlier.
12.7. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended, modified or terminated, and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retrospectively or prospectively), with, but only with, the written consent of
each of the other parties hereto.
12.8. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction. be ineffective
to the extent of such prohibition or unenforceability without
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invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.9. NO WAIVER OF FUTURE BREACH. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof. No assent, express or implied, by any party hereto
to any breach in or default of any agreement or condition herein contained on
the part of any other party hereto shall constitute a waiver of or assent to any
succeeding breach in or default of the same or any other agreement or condition
hereof by such other party.
12.10. NO IMPLIED RIGHTS OR REMEDIES; THIRD PARTY BENEFICIARIES. Except as
otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or to give any Person,
firm or corporation, other than the parties hereto, any rights or remedies under
or by reason of this Agreement. Except as otherwise expressly provided in this
Agreement, there are no intended third party beneficiaries under or by reason of
this Agreement.
12.11. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
12.12. NOUNS AND PRONOUNS. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and
vice-versa.
12.13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts. excluding choice
of law rules thereof.
12.14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts. and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF. this Registration Rights Agreement has been executed
under seal by the parties hereto as of the day and year first above written.
STREAMLINE, INC.
By: /S/ XXXXXXX X. XXXXXXX
--------------------------
Xxxxxxx X. XxXxxxx
President
DDJ Canadian High Yield Fund
By: DDJ Capital Management,
LLC, as attorney-in-fact
By: /S/ XXXXX X. XXXXXXXXX
--------------------------
Xxxxx X. Xxxxxxxxx
Member
Mellon Bank, N.A., solely in its
capacity as Trustee for General
Motors Employees Domestic Group
Pension Trust as directed by DDJ
Capital Management, LLC, and not
in its individual capacity
By: /S/ XXXXXXXXXX XXXX
--------------------------
Xxxxxxxxxx Xxxx
Authorized Signatory
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REGISTRATION RIGHTS AGREEMENT
STOCKHOLDER SIGNATURE PAGE
/S/ XXXXXXX X. XXXXXXX
---------------------------
Xxxxxxx X. XxXxxxx
/S/ XXXXX ABT
--------------------------
Xxxxx Abt
/S/ XXXXX XXXXXXXXX
--------------------------
Xxxxx Xxxxxxxxx
/S/ XXXXX XXXXX
--------------------------
Xxxxx Xxxxx
/S/ XXXX XXXXXXXXX
--------------------------
Xxxx Xxxxxxxxx
