Page 13 of 78 Pages
NOTE AND WARRANT PURCHASE AGREEMENT
among
BLUEFLY, INC.,
QUANTUM INDUSTRIAL PARTNERS LDC
and
SFM DOMESTIC INVESTMENTS LLC
Dated: May __, 2000
Page 14 of 78 Pages
TABLE OF CONTENTS
Page
----
Section 1. DEFINITIONS................................................1
1.1 Definitions................................................1
1.2 Investment Agreement.......................................2
1.3 Other Definitions..........................................2
Section 2. PURCHASE AND SALE OF THE SECURITIES........................3
2.1 Closing....................................................3
2.2 Transactions at the Closing................................3
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..............3
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...........4
Section 5. CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE....5
5.1 Representations and Warranties.............................5
5.2 Compliance with this Agreement.............................5
5.3 Securities.................................................5
5.4 Consents and Approvals.....................................5
Section 6. CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE.......5
6.1 Representations and Warranties.............................6
6.2 Compliance with this Agreement.............................6
6.3 Consents and Approvals.....................................6
6.4 Payment of Purchase Price..................................6
Section 7. COVENANTS..................................................6
7.1 Covenants of the Company...................................6
7.2 Mutual Covenants. .........................................7
Section 8. INDEMNIFICATION............................................7
Section 9. REGISTRATION RIGHTS........................................8
Section 10. TERMINATION OF AGREEMENT...................................8
10.1 Termination................................................8
10.2 Survival...................................................8
Section 11. MISCELLANEOUS..............................................8
11.1 Survival of Representations, Warranties and Covenants......8
i
Page 15 of 78 Pages
Page
----
11.2 Notices....................................................9
11.3 Successors and Assigns.....................................9
11.4 Amendment and Waiver.......................................9
11.5 Counterparts...............................................9
11.6 Headings...................................................9
11.7 GOVERNING LAW..............................................9
11.8 Severability...............................................9
..........................................................10
11.9 Rules of Construction.....................................10
11.10 Entire Agreement..........................................10
11.11 Fees......................................................10
11.12 Publicity; Confidentiality................................10
11.13 Further Assurances........................................10
EXHIBITS
A-1 Form of Warrant
A-2 Form of Senior Convertible Note
SCHEDULES
3 Capitalization
ii
Page 16 of 78 Pages
NOTE AND WARRANT PURCHASE AGREEMENT
NOTE AND WARRANT PURCHASE AGREEMENT (the "Agreement"), dated as of
May __, 2000, by and among Bluefly, Inc., a New York corporation (the
"Company"), and the purchasers listed on Schedule 1 hereto (the "Purchasers").
WHEREAS, pursuant to an Investment Agreement dated as of July 27,
1999, by and among the Company, the Purchasers, The ▇▇▇▇▇ Foundation, ▇▇▇▇▇
▇▇▇▇▇ and Pilot Domestic Trust (the "Investment Agreement"), each of the
Purchasers has invested in shares of the Company's Series A Preferred Stock;
WHEREAS, pursuant to a Note and Warrant Purchase Agreement, dated as
of March 28, 2000, by and among the Company and the Purchasers (the "Note
Purchase Agreement"), the Purchasers, jointly but not severally, committed (the
"Standby Commitment") to provide to the Company up to an aggregate of
$12,000,000 (the "Commitment Amount") at any time prior to January 1, 2001 in
one or more tranches as requested by the Company;
WHEREAS, the Company wishes to draw, and the Purchasers wish to
provide the Company with, $3,000,000 from the Standby Commitment (the "Draw");
WHEREAS, in connection with the Draw the Company wishes to sell to
each Purchaser, and each Purchaser wishes to purchase from the Company: (i) a
senior convertible promissory note, in the aggregate principal amount set forth
opposite such Purchaser's name on Schedule 2.2 hereto, having the terms and
conditions set forth in the form of Note attached hereto as Exhibit A-1 (the
"Senior Convertible Notes") and (ii) a warrant (the "Warrants" and, together
with the Senior Convertible Notes, the "Securities") having the terms and
conditions set forth in the form of Warrant attached hereto as Exhibit A-2; and
NOW, THEREFORE, in consideration of the mutual terms and conditions
herein contained, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1. DEFINITIONS
1.1 Definitions. As used in this Agreement, the following definitions
shall apply:
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2
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company, as the same was amended pursuant to Section 5.6 of
the Investment Agreement and as in effect on the Closing Date.
"Material Adverse Effect" means a circumstance, fact, change,
development or effect (i) that could or could reasonably be expected to have a
materially adverse effect on the properties, results of operations, business,
domestic prospects or condition (financial or otherwise) of the Company taken as
a whole, or (ii) that adversely effects the ability of the Company to consummate
the transactions contemplated by this Agreement in any material respect or
impairs or delays the ability of the Company to effect the Closing.
"Next Round Financing" means the closing of a private placement of
Next Round Securities which results in gross proceeds to the Company of $10
million in one or more tranches.
"Next Round Securities" means the Company's Common Stock or
securities convertible into or exercisable for the Company's Common Stock in the
Next Round Financing.
"Transaction Documents" means collectively, this Agreement
(including the schedules attached hereto), the Senior Convertible Notes and the
Warrants.
1.2 Note Purchase Agreement. Capitalized terms not otherwise defined
herein shall have the meanings set forth for such terms in the Note Purchase
Agreement.
1.3 Other Definitions. The following terms are defined in the
section referred to opposite such term.
Term Section
---- -------
Agreement Recitals
Closing 2.1
Closing Date 2.1
Commitment Amount Recitals
Draw Recitals
Investment Agreement Recitals
Note Purchase Agreement Recitals
Purchase Price 2.2
Purchasers Recitals
Securities Recitals
Senior Convertible Notes Recitals
Standby Commitment Recitals
Warrants Recitals
Page 18 of 78 Pages
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Section 2. PURCHASE AND SALE OF THE SECURITIES
2.1 Closing. Subject to the terms and conditions of this Agreement,
the closing of the sale and purchase of the Securities (the "Closing") shall
take place at the offices of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 1285
Avenue of the Americas, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ on the date hereof or on
such other date and time as the Purchasers and the Company may mutually agree
(the "Closing Date").
2.2 Transactions at the Closing. At the Closing, subject to the
terms and conditions of this Agreement, each of the Purchasers severally (and
not jointly) shall purchase and acquire from the Company, and the Company shall
issue and sell to the Purchasers, Senior Convertible Notes and Warrants for an
aggregate purchase price of $3,000,000 (the "Purchase Price"). At the Closing,
the Company shall deliver to each Purchaser a duly executed Senior Convertible
Note, in the aggregate principal amount set forth opposite such Purchaser's name
on Schedule 2.2 hereto, and a duly executed Warrant to purchase the amount of
shares of Next Round Securities as set forth in the Warrant, each registered in
the name of such Purchaser or its nominees, with appropriate issue stamps, if
any, affixed at the expense of the Company, free and clear of any Lien, against
payment by each Purchaser of the portion of the Purchase Price payable in
respect thereof as set forth opposite such Purchaser's name on Schedule 2.2
hereto by wire transfer of immediately available funds to an account designated
by the Company.
(a) Standby Commitment. Upon payment of the Purchase Price and the
delivery of the Securities, the Commitment Amount shall be reduced to
$9,000,000, which may be drawn and/or reduced by the Company as provided in the
Note Purchase Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Purchaser that
the representations and warranties of the Company contained in Section 3 of the
Note Agreement are true and correct in all material respects as of the date
hereof and as of the Closing Date as if made at and on such dates, except that
(i) the references therein to Section 2.1 are hereby amended to refer to Section
1.1 and (ii) the representations of the Company at Section 3(d) of the Note
Purchase Agreement are reaffirmed as follows:
Capitalization. As of the date hereof, the issued and outstanding
capital stock of the Company consists of 4,924,906 shares of Common Stock and
500,000 shares of Series A Preferred Stock. As of the Closing Date, the
authorized capital stock of the Company will consist of 15,000,000 shares of
Common Stock (of which 50,000 shares shall have been reserved for the Purchasers
in connection with the transactions contemplated hereby) and 2,000,000 shares of
Preferred Stock, $.01 par value, of which 500,000 shares shall have been
designated Series A Preferred Stock. As of the first closing of the Next Round,
sufficient numbers of shares of Next Round Securities and, as appropriate, of
shares of Common Stock into which such shares of Next Round Securities
Page 19 of 78 Pages
4
are convertible or for which they are exercisable, shall be authorized and
reserved as required by the documents to be negotiated in connection with the
Next Round and as necessary to permit conversion of the maximum amount then
potentially payable by the Company under the Senior Convertible Notes into Next
Round Securities.
All such shares of Capital Stock of the Company are or shall have
been duly authorized and (a) in the case of shares of Common Stock or Next Round
Securities issued upon conversion of the Senior Convertible Notes or exercise of
the Warrants, shall be fully paid and non-assessable upon such conversion, and
(b) in the case of shares of Common Stock issued upon conversion, exchange,
and/or exercise of such Next Round Securities, shall be fully paid and
non-assessable upon the conversion, exchange, or payment of the exercise price
contemplated by the Next Round Securities.
Except as set forth in Schedule 3 of this Agreement, as contemplated
by the Investment Agreement, the Note Purchase Agreement or this Agreement,
there are no shares of capital stock of the Company reserved for issuance.
Except for (a) the Warrants, (b) the Senior Convertible Notes, (c) the warrants
issued pursuant to the Note Purchase Agreement, (d) the Senior Convertible Notes
issued pursuant to the Note Purchase Agreement, (e) the Next Round Securities
(including those into which the Senior Convertible Notes are convertible), (f)
the Series A Preferred, and (g) as set forth in Schedule 3 of this Agreement,
there are no options, warrants or other rights to purchase shares of Capital
Stock or other securities of the Company or any of its Subsidiaries, or
securities convertible into or exercisable for shares of Capital Stock or other
securities of the Company or any of its Subsidiaries. Except as set forth in
Schedule 3 to this Agreement, as required by the Transaction Documents (as such
term is defined in the Note Purchase Agreement), or as required by the
Transaction Documents (as such term is defined in this Agreement), neither the
Company nor any Subsidiary is obligated in any manner to issue shares of its
Capital Stock or other securities. Except as contemplated hereby and for
relevant state and federal securities laws, there are no restrictions on each
Purchaser's ability to transfer shares of Capital Stock of the Company.
The warrant issued to Quantum Industrial Partners LDC in connection
with the Note Purchase Agreement is exercisable for 169,452.5 shares of Common
Stock and the warrant issued to SFM Domestic Investments LLC are exercisable for
5,547.5 shares of Common Stock.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants (severally as
to itself and not jointly) to the Company that the representations and
warranties of such Purchaser contained in Section 4 of the Note Purchase
Agreement are true and correct in all material respects as of the date hereof
and as of the Closing Date as if made at and on such dates, except that the
references therein to Section 2.1 are hereby amended to refer to Section 1.1.
Page 20 of 78 Pages
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Section 5. CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE
The obligation of the Purchasers to purchase the Securities and to
pay the Purchase Price, and to perform any obligations hereunder shall be
subject to the satisfaction as determined by, or waiver by, the Purchasers of
the following conditions on or before the Closing Date:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 3 hereof shall be true and
correct in all material respects at and on the Closing Date as if made at and on
such date, except to the extent that any representation and warranty expressly
speaks as of an earlier date, in which case such representation and warranty is
true and correct as of such date and any variance in such representation and
warranty following such date may only be the result of activities or
transactions which have taken place after the date hereof and which are
contemplated by this Agreement.
5.2 Compliance with this Agreement. The Company shall have performed
and complied in all material respects with all of its agreements and conditions
set forth herein that are required to be performed or complied with by the
Company as of the Closing Date.
5.3 Securities. At the Closing, the Company shall have delivered to
each of the Purchasers a Senior Convertible Note and a Warrant pursuant to
Section 2.2 hereof.
5.4 Consents and Approvals. All consents, exemptions,
authorizations, or other actions by, or notices to, or filings with Governmental
Authorities and other Persons in respect of all Requirements of Law and with
respect to those Contractual Obligations of the Company which are necessary or
required in connection with the execution, delivery or performance (including
the issuance of the Senior Convertible Notes, and any Shares of Common Stock
issuable upon exercise of the Warrants) by, or enforcement against, the Company
of this Agreement (other than the Next Round Financing or the drawdown of the
Standby Commitment) and each of the other Transaction Documents shall have been
obtained and be in full force and effect, except for consents, exceptions,
authorizations or other actions which would not have a Material Adverse Effect,
and each of the Purchasers shall have been furnished with appropriate evidence
thereof.
Section 6. CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE
The obligations of the Company to issue and sell the Senior
Convertible Notes and the Warrants and to perform its other obligations
hereunder, shall be subject to the satisfaction as determined by, or waiver by,
the Company of the following conditions on or before the Closing Date:
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6
6.1 Representations and Warranties. The representations and
warranties of the Purchasers contained in Section 4 hereof shall be true and
correct at and on the Closing Date as if made at and on such date, except to the
extent that any representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty is true and correct as of
such date and any variance in such representation and warranty following such
date may only be the result of activities or transactions which have taken place
after the date hereof and which are contemplated by this Agreement.
6.2 Compliance with this Agreement. The Purchasers shall have
performed and complied in all material respects with all of their agreements and
conditions set forth herein that are required to be performed or complied with
by the Purchasers on or before the Closing Date.
6.3 Consents and Approvals. All consents, exemptions,
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements of Law
and with respect to those Contractual Obligations of the Purchasers which are
necessary or required in connection with the execution, delivery or performance
(including the purchase of the Senior Convertible Notes and the Warrants, but
excluding the conversion of the Senior Convertible Notes, the exercise of the
Warrants, and the conversion or exercise of the Next Round Securities) by, or
enforcement against, the Purchasers of this Agreement shall have been obtained
and be in full force and effect, and the Company shall have been furnished with
appropriate evidence thereof.
6.4 Payment of Purchase Price. The Company shall have received the
Purchase Price.
Section 7. COVENANTS
7.1 Covenants of the Company. The Company hereby covenants and
agrees with the Purchasers with respect to this Section 7, so long as they hold
any Capital Stock of the Company -- except to the extent that a particular
section of this Section 7 provides for an earlier termination, as follows:
(a) SEC Filings. From and after the date of this Agreement, the
Company agrees that it will use commercially reasonable efforts to file with the
SEC, within the time periods specified in the SEC's rules and regulations for as
long as they are applicable to the Company, (i) all quarterly and annual
financial information required to be filed with the SEC on Forms 10-QSB and
10-KSB, (ii) all current reports required to be filed with the SEC on Form 8-K
and (iii) any other information required to be filed with the SEC.
(b) Reservation of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Capital Stock, solely
for the purpose of issue or delivery upon conversion or exercise of the
Securities and of the
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conversion or exercise of shares of Capital Stock issued upon such conversion or
exercise, the number of shares of each class of Capital Stock that are required
to be issued upon such conversion or exercise. The Company shall issue such
shares of Capital Stock in accordance with the terms of this Agreement, the
other Transaction Documents and the Certificate of Incorporation, and otherwise
comply with the terms hereof and thereof.
(c) Registration and Listing. To the extent the reservation of any
shares of Capital Stock required to be reserved pursuant to Section 7.2 of this
Agreement requires registration with or approval of any Governmental Authority
under any Federal or state or other applicable law before such shares of Capital
Stock may be issued or delivered upon conversion or exercise, the Company will
in good faith and as expeditiously as possible cause such shares of Capital
Stock to be duly registered or approved, as the case may be. So long as the
shares of Common Stock are quoted on the NASDAQ or listed on any national
securities exchange, the Company will, if permitted by the rules of such system
or exchange, quote or list and keep quoted or listed on such system or exchange,
upon official notice of issuance, all shares of Common Stock issuable or
deliverable upon exercise of the Warrants or the conversion or exchange of Next
Round Securities into which the Senior Convertible Notes are convertible.
7.2 Mutual Covenants. The parties agree that the anti-dilution
provision of Section 6(e)(ii) of the Certificate of Amendment of the Certificate
of Incorporation shall not apply as a result of the issuance of the Warrants.
Section 8. INDEMNIFICATION.
(a) Except as otherwise provided in this Section 8, the Company
agrees to indemnify, defend and hold harmless each Purchaser and its Affiliates
and their respective officers, directors, agents, employees, subsidiaries,
partners, members and controlling persons to the fullest extent permitted by law
from and against any and all claims, losses, liabilities, damages, deficiencies,
judgements, assessments, fines, settlements, costs or expenses (including
interest, penalties and reasonable fees, disbursements and other charges of
counsel) (collectively, "Losses") based upon, arising out of or otherwise in
respect of any inaccuracy in or any breach of any surviving representation,
warranty, covenant or agreement of the Company contained in any Transaction
Document. Notwithstanding the foregoing, the Company's liability pursuant to
this Section 8 shall in no event exceed $15,000,000.
(b) Except as otherwise provided in this Section 8, the Purchasers,
severally and not jointly, agree to indemnify, defend and hold harmless the
Company and its respective officers, directors, agents, employees, subsidiaries,
partners, members and controlling persons to the fullest extent permitted by law
from and against any and all Losses based upon, arising out of or otherwise in
respect of any inaccuracy in or any breach of any surviving representation,
warranty, covenant or agreement (excluding the Standby Commitment) of the
Purchasers contained in any Transaction
Page 23 of 78 Pages
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Document. Notwithstanding the foregoing, the Purchasers' liability pursuant to
this Section 8 shall in no event exceed $3,000,000.
Section 9. REGISTRATION RIGHTS.
(a) The Company and each of the Purchasers hereby agree and
acknowledge that the shares of Common Stock for which the Warrants are
exercisable and any Common Stock issuable upon the conversion or exchange of the
Next Round Securities are Registrable Securities, as such term is defined in the
Investment Agreement, and that, until the closing of the Next Round, the
provisions of Section 9 of the Investment Agreement shall apply to all Persons
of record holding the Senior Convertible Notes or the Warrants (or any shares of
Registrable Securities issued, directly or indirectly, as a result of a
conversion under a Senior Convertible Note or as a result of an exercise of a
Warrant).
(b) Upon completion of the Next Round, the Purchasers shall have the
option to decide whether the registration rights and related provisions set
forth in Section 9 of the Investment Agreement shall apply to the Warrants or
whether the registration rights and related provisions agreed to in the final
documentation negotiated in connection with the Next Round Financing shall
apply.
Section 10. TERMINATION OF AGREEMENT
10.1 Termination. For purposes of clarification: (1) the Company
shall have no obligation to issue securities pursuant to the Standby Commitment
and (2) the Purchasers shall have no obligations to fund the Standby Commitment
after the earlier of (i) that date on which the Company has received from the
Purchasers financing proceeds aggregating $15 million and (ii) December 31,
2000.
10.2 Survival. If this Agreement is terminated and the transactions
contemplated hereby are not consummated as described above, this Agreement shall
become void and of no further force and effect; provided, however, that (i) a
breaching party shall be liable to the non-breaching party for damages caused by
such breach; (ii) none of the non-breaching parties hereto shall have any
liability in respect of a termination of this Agreement pursuant to Section
10.1(a) or Section 10.1(b); and provided further, that none of the parties
hereto shall have any liability for speculative or unforeseeable damages
resulting from a termination of this Agreement.
Section 11. MISCELLANEOUS
11.1 Survival of Representations, Warranties and Covenants. The
representations and warranties, covenants and agreements contained herein shall
survive for a period of eighteen months following the Closing Date.
Page 24 of 78 Pages
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11.2 Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in the manner set forth in the
Investment Agreement.
11.3 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto. Subject to applicable securities laws, each of the Purchasers
may assign any of its rights under this Agreement to any of its Affiliates but
any such assignment shall not relieve any Purchaser from its obligations
hereunder. The Company may not assign any of its rights under this Agreement and
each of the other Transaction Documents, except to a successor-in-interest to
the Company, without the written consent of all of the Purchasers.
11.4 Amendment and Waiver.
(a) No failure or delay on the part of the Company or the Purchasers
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.
(b) Any amendment, supplement or modification of or to any provision
of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by the Company or the Purchasers from the terms of any
provision of this Agreement, shall be effective (i) only if it is made or given
in writing and signed by the Company and the Purchasers, and (ii) only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement, no notice to or demand
on the Company in any case shall entitle the Company to any other or further
notice or demand in similar or other circumstances.
11.5 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
11.6 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
11.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
11.8 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of
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any such provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
11.9 Rules of Construction. Unless the context otherwise requires,
"or" is not exclusive, and references to sections or subsections refer to
sections or subsections of this Agreement.
11.10 Entire Agreement. This Agreement, together with the exhibits
and schedules hereto, and the other Transaction Documents, are intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein, except those set forth in the Transaction
Documents (as such term is defined in the Investment Agreement).
11.11 Fees. Upon the Closing, the Company shall reimburse the
Purchasers for their reasonable out-of-pocket expenses (including attorney's
fees, disbursements and other charges) incurred in connection with the
transactions contemplated by this Agreement; provided, however, that the Company
shall not be obligated to reimburse the Purchasers for any reasonable
out-of-pocket expenses in excess of $[ ] in the aggregate.
11.12 Publicity; Confidentiality. The provisions of Section 11.12 of
the Note Purchase Agreement shall apply with respect to this Agreement and the
transactions contemplated by this Agreement and the Transaction Documents.
11.13 Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
Page 26 of 78 Pages
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective officers hereunto duly authorized
on the date first above written.
BLUEFLY, INC.
By: /s/ ▇▇▇ Seifs
-------------
Name: ▇▇▇ Seifs
Title: Chief Executive Officer
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Attorney-in-fact
SFM DOMESTIC INVESTMENTS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Attorney-in-fact
Page 27 of 78 Pages
EXHIBIT A-1 to
NOTE AND WARRANT
PURCHASE AGREEMENT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED,
QUALIFIED, APPROVED OR DISAPPROVED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT OR LAWS AND NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER FEDERAL OR STATE REGULATORY
AUTHORITY HAS PASSED ON OR ENDORSED THE MERITS OF THESE SECURITIES.
WARRANT NO. [_]
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
BLUEFLY, INC.
THIS IS TO CERTIFY THAT ____________ or its registered assigns (the
"Holder"), is the owner of the right to subscribe for and to purchase from
BLUEFLY, INC., a New York corporation (the "Company"), [____________] (the
"Number Issuable"), fully paid, duly authorized and nonassessable shares of
Common Stock at a price equal to the price at which the Next Round Securities
are convertible into or exchangeable for shares of Common Stock (the "Exercise
Price"), at any time, in whole or in part, from and after the closing of the
Next Round Financing and prior to 5:00 PM New York City time, on May __, 2005
(the "Expiration Date") all on the terms and subject to the conditions
hereinafter set forth (the "Warrants").
The Number Issuable is subject to further adjustment from time to
time pursuant to the provisions of Section 2 of this Warrant Certificate.
Capitalized terms used herein but not otherwise defined shall have
the meanings given to them in Section 12 hereof.
Section 1. Exercise of Warrants.
(a) Subject to the last paragraph of this Section 1, the Warrants
evidenced hereby may be exercised, in whole or in part, by the Holder hereof at
any time
Page 28 of 78 Pages
2
or from time to time, on or after the date hereof and prior to the Expiration
Date upon delivery to the Company at the principal executive office of the
Company in the United States of America, of (A) this Warrant Certificate, (B) a
written notice stating that such Holder elects to exercise the Warrants
evidenced hereby in accordance with the provisions of this Section 1 and
specifying the number of Warrants being exercised and the name or names in which
the Holder wishes the certificate or certificates for shares of Common Stock to
be issued and (C) payment of the Exercise Price for such Warrants, which shall
be payable by any one or any combination of the following: (i) cash; (ii)
certified or official bank check payable to the order of the Company; (iii) by
the surrender (which surrender shall be evidenced by cancellation of the number
of Warrants represented by any Warrant Certificate presented in connection with
a Cashless Exercise (as defined below)) of a Warrant or Warrants (represented by
one or more relevant Warrant Certificates), and without the payment of the
Exercise Price in cash, in return for the delivery to the surrendering Holder of
such number of shares of Common Stock equal to the number of shares of the
Common Stock for which such Warrant is exercisable as of the date of exercise
(if the Exercise Price were being paid in cash or certified or official bank
check) reduced by that number of shares of Common Stock equal to the quotient
obtained by dividing (x) the aggregate Exercise Price (assuming no Cashless
Exercise) to be paid by (y) the Market Price of one Share of Common Stock on the
Business Day which immediately precedes the day of exercise of the Warrant; or
(iv) by the delivery of shares of the Common Stock having a value (as defined by
the next sentence) equal to the aggregate Exercise Price to be paid, that are
either held by the Holder or are acquired in connection with such exercise, and
without payment of the Exercise Price in cash. Any share of Common Stock
delivered as payment for the Exercise Price in connection with an In-Kind
Exercise (as defined below) shall be deemed to have a value equal to the Market
Price of one Share of Common Stock on the Business Day which immediately
precedes the day of exercise of the Warrants. An exercise of a Warrant in
accordance with clause (iii) is herein referred to as a "Cashless Exercise" and
an exercise of a Warrant in accordance with clause (iv) is herein referred to as
an "In-Kind Exercise." The documentation and consideration, if any, delivered in
accordance with subsections (A), (B) and (C) are collectively referred to herein
as the "Warrant Exercise Documentation."
(b) As promptly as practicable, and in any event within five (5)
Business Days after receipt of the Warrant Exercise Documentation, the Company
shall deliver or cause to be delivered (A) certificates representing the number
of validly issued, fully paid and nonassessable shares of Common Stock specified
in the Warrant Exercise Documentation, (B) if applicable, cash in lieu of any
fraction of a share, as hereinafter provided, and (C) if less than the full
number of Warrants evidenced hereby are being exercised or used in a Cashless
Exercise, a new Warrant Certificate or Certificates, of like tenor, for the
number of Warrants evidenced by this Warrant Certificate, less the number of
Warrants then being exercised and/or used in a Cashless Exercise. Such exercise
shall be deemed to have been made at the close of business on the date of
delivery of the Warrant Exercise Documentation so that the Person entitled to
receive shares of Common
Page 29 of 78 Pages
3
Stock upon such exercise shall be treated for all purposes as having become the
record holder of such shares of Common Stock at such time.
(c) The Company shall pay all expenses incurred by the Company in
connection with and taxes and other governmental charges (other than income
taxes of the Holder) that may be imposed in respect of, the issue or delivery of
any shares of Common Stock issuable upon the exercise of the Warrants evidenced
hereby. The Company shall not be required, however, to pay any tax or other
charge imposed in connection with any transfer involved in the issue of any
certificate for shares of Common Stock, as the case may be, in any name other
than that of the registered holder of the Warrant evidenced hereby.
(d) In connection with the exercise of any Warrants evidenced
hereby, no fractions of shares of Common Stock shall be issued, but in lieu
thereof the Company shall pay a cash adjustment in respect of such fractional
interest in an amount equal to such fractional interest multiplied by the Market
Price for one Share of Common Stock on the Business Day which immediately
precedes the day of exercise. If more than one (1) such Warrant shall be
exercised by the holder thereof at the same time, the number of full shares of
Common Stock issuable on such exercise shall be computed on the basis of the
total number of Warrants so exercised.
Section 2. Certain Adjustments.
(a) The number of shares of Common Stock purchasable upon the
exercise of this Warrant and the Exercise Price shall be subject to adjustment
as follows:
(i) Stock Dividends, Subdivision, Combination or
Reclassification of Common Stock. If at any time after the date of the issuance
of this Warrant the Company shall (i) pay a dividend on Common Stock in shares
of its capital stock, (ii) combine its outstanding shares of Common Stock into a
smaller number of shares, (iii) subdivide its outstanding shares of Common Stock
as the case may be, or (iv) issue by reclassification of its shares of Common
Stock any shares of capital stock of the Company, then, on the record date for
such dividend or the effective date of such subdivision or split-up, combination
or reclassification, as the case may be, the number and kind of shares to be
delivered upon exercise of this Warrant will be adjusted so that the Holder will
be entitled to receive the number and kind of shares of capital stock that such
Holder would have owned or been entitled to receive upon or by reason of such
event had this Warrant been exercised immediately prior thereto, and the
Exercise Price will be adjusted as provided below in paragraph 2(a)(v).
(ii) Extraordinary Distributions. If at any time
after the date of issuance of this Warrant, the Company shall distribute to all
holders of Common Stock (including any such distribution made in connection with
a consolidation or merger in which the Company is the continuing or surviving
corporation and Common Stock is not changed or exchanged) cash, evidences of
indebtedness, securities or other assets
Page 30 of 78 Pages
4
(excluding (i) ordinary course cash dividends to the extent such dividends do
not exceed the Company's retained earnings and (ii) dividends payable in shares
of capital stock for which adjustment is made under Section 2(a)(i) or rights,
options or warrants to subscribe for or purchase securities of the Company),
then in each such case the number of shares of Common Stock to be delivered to
such Holder upon exercise of this Warrant shall be increased so that the Holder
thereafter shall be entitled to receive the number of shares of Common Stock
determined by multiplying the number of shares such Holder would have been
entitled to receive immediately before such record date by a fraction, the
denominator of which shall be the Exercise Price on such record date minus the
then fair market value (as reasonably determined by the Board of Directors of
the Company in good faith) of the portion of the cash, evidences of
indebtedness, securities or other assets so distributed or of such rights or
warrants applicable to one share of the Common Stock (provided that such
denominator shall in no event be less than $.01) and the numerator of which
shall be the Exercise Price.
(iii) Reorganization, etc. If at any time after
the date of issuance of this Warrant any consolidation of the Company with or
merger of the Company with or into any other Person (other than a merger or
consolidation in which the Company is the surviving or continuing corporation
and which does not result in any reclassification of, or change (other than a
change in par value or from par value to no par value or from no par value to
par value, or as a result of a subdivision or combination) in, outstanding
shares of either Common Stock) or any sale, lease or other transfer of all or
substantially all of the assets of the Company to any other person (each, a
"Reorganization Event"), shall be effected in such a way that the holders of the
Common Stock shall be entitled to receive cash, stock, other securities or
assets (whether such cash, stock, other securities or assets are issued or
distributed by the Company or another Person) with respect to or in exchange for
the Common Stock, then, upon exercise of this Warrant, the Holder shall have the
right to receive the kind and amount of cash, stock, other securities or assets
receivable upon such Reorganization Event by a holder of the number of shares of
the Common Stock that such holder would have been entitled to receive upon
exercise of this Warrant had this Warrant been exercised immediately before such
Reorganization Event, subject to adjustments that shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section 2(a). The
Company shall not enter into any of the transactions referred to in this Section
2(a)(iii) unless effective provision shall be made so as to give effect to the
provisions set forth in this Section 2(a)(iii).
(iv) Carryover. Notwithstanding any other
provision of this Section 2(a), no adjustment shall be made to the number of
shares of either Common Stock to be delivered to the Holder (or to the Exercise
Price) if such adjustment represents less than .05% of the number of shares to
be so delivered, but any lesser adjustment shall be carried forward and shall be
made at the time and together with the next subsequent adjustment that together
with any adjustments so carried forward shall amount to .05% or more of the
number of shares to be so delivered.
Page 31 of 78 Pages
5
(v) Exercise Price Adjustment.
(i) Whenever the Number Issuable upon the
exercise of the Warrant is adjusted as provided pursuant to this Section 2(a),
the Exercise Price per share payable upon the exercise of this Warrant shall be
adjusted by multiplying such Exercise Price immediately prior to such adjustment
by a fraction, of which the numerator shall be the Number Issuable upon the
exercise of the Warrant immediately prior to such adjustment, and of which the
denominator shall be the Number Issuable immediately thereafter; provided,
however, that the Exercise Price for each Share of the Common Stock shall in no
event be less than the par value of a share of such Common Stock.
(ii) If the price at which the Next Round
Securities are convertible into shares of Common Stock is adjusted pursuant to
documents that create and define the Next Round Securities, then the Exercise
Price of the Warrants shall be adjusted accordingly provided that there should
be no duplication of adjustments.
(b) Notice of Adjustment. Whenever the Number Issuable or the
Exercise Price is adjusted, as herein provided, the Company shall promptly mail
by first class mail, postage prepaid, to the Holder, notice of such adjustment
or adjustments setting forth the Number Issuable and the Exercise Price after
such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Section 3. No Redemption. The Company shall not have any right to
redeem any of the Warrants evidenced hereby.
Section 4. Notice of Certain Events. In case at any time or from
time to time (i) the Company shall declare any dividend or any other
distribution to the holders of Common Stock, (ii) the Company shall authorize
the granting to the holders of Common Stock of rights or warrants to subscribe
for or purchase any additional shares of stock of any class or any other right,
(iii) the Company shall authorize the issuance or sale of any other shares or
rights which would result in an adjustment to the Number Issuable pursuant to
Section 2(a)(i), (ii), or (iii), or (iv) there shall be any capital
reorganization or reclassification of Common Stock of the Company or
consolidation or merger of the Company with or into another Person, or any sale
or other disposition of all or substantially all the assets of the Company, or
(v) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company, then, in any one or more of such cases the Company
shall mail to the Holder at such Holder's address as it appears on the transfer
books of the Company, as promptly as practicable but in any event at least 10
days prior to the date on which the transactions contemplated in Section
2(a)(i), (ii), or (iii), a notice stating (a) the date on which a record is to
be taken for the purpose of such dividend, distribution, rights or warrants or,
if a record is not to be taken, the date as of which the holders of record of
either Common Stock to be entitled to
Page 32 of 78 Pages
6
such dividend, distribution, rights or warrants are to be determined, or (b) the
date on which such reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up is expected to become effective. Such
notice also shall specify the date as of which it is expected that the holders
of record of the Common Stock shall be entitled to exchange the Common Stock for
shares of stock or other securities or property or cash deliverable upon such
reorganization, reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up.
Section 5. Certain Covenants. The Company covenants and agrees that
all shares of Capital Stock of the Company which may be issued upon the exercise
of the Warrants evidenced hereby will be duly authorized, validly issued and
fully paid and nonassessable. The Company shall at all times reserve and keep
available for issuance upon the exercise of the Warrants, such number of its
authorized but unissued shares of Common Stock as will from time to time be
sufficient to permit the exercise of all outstanding Warrants, and shall take
all action required to increase the authorized number of shares of Common Stock
if at any time there shall be insufficient authorized but unissued shares of
Common Stock to permit such reservation or to permit the exercise of all
outstanding Warrants.
Section 6. Registered Holder. The persons in whose names this
Warrant Certificate is registered shall be deemed the owner hereof and of the
Warrants evidenced hereby for all purposes. The registered Holder of this
Warrant Certificate, in their capacity as such, shall not be entitled to any
rights whatsoever as a stockholder of the Company, except as herein provided.
Section 7. Transfer of Warrants. Any transfer of the rights
represented by this Warrant Certificate shall be effected by the surrender of
this Warrant Certificate, along with the form of assignment attached hereto,
properly completed and executed by the registered Holder hereof, at the
principal executive office of the Company in the United States of America,
together with an appropriate investment letter and opinion of counsel, if deemed
reasonably necessary by counsel to the Company to assure compliance with
applicable securities laws. Thereupon, the Company shall issue in the name or
names specified by the registered Holder hereof and, in the event of a partial
transfer, in the name of the registered Holder hereof, a new Warrant Certificate
or Certificates evidencing the right to purchase such number of shares of Common
Stock as shall be equal to the number of shares of Common Stock then purchasable
hereunder.
Section 8. Denominations. The Company covenants that it will, at its
expense, promptly upon surrender of this Warrant Certificate at the principal
executive office of the Company in the United States of America, execute and
deliver to the registered Holder hereof a new Warrant Certificate or
Certificates in denominations specified by such Holder for an aggregate number
of Warrants equal to the number of Warrants evidenced by this Warrant
Certificate.
Page 33 of 78 Pages
7
Section 9. Replacement of Warrants. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant Certificate and, in the case of loss, theft or destruction, upon
delivery of an indemnity reasonably satisfactory to the Company (in the case of
an insurance company or other institutional investor, its own unsecured
indemnity agreement shall be deemed to be reasonably satisfactory), or, in the
case of mutilation, upon surrender and cancellation thereof, the Company will
issue a new Warrant Certificate of like tenor for a number of Warrants equal to
the number of Warrants evidenced by this Warrant Certificate.
Section 10. Governing Law. THIS WARRANT CERTIFICATE SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL
BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 11. Rights Inure to Registered Holder. The Warrants
evidenced by this Warrant Certificate will inure to the benefit of and be
binding upon the registered Holder thereof and the Company and their respective
successors and permitted assigns. Nothing in this Warrant Certificate shall be
construed to give to any Person other than the Company and the registered Holder
thereof any legal or equitable right, remedy or claim under this Warrant
Certificate, and this Warrant Certificate shall be for the sole and exclusive
benefit of the Company and such registered Holder. Nothing in this Warrant
Certificate shall be construed to give the registered Holder hereof any rights
as a Holder of shares of either Common Stock until such time, if any, as the
Warrants evidenced by this Warrant Certificate are exercised in accordance with
the provisions hereof.
Section 12. Definitions. For the purposes of this Warrant
Certificate, the following terms shall have the meanings indicated below:
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in the City of New York, New York are authorized
or required by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock (or equivalent ownership interests in a Person not a corporation)
whether now outstanding or hereafter issued, including, without limitation, all
Next Round Securities or Series A Preferred Shares and any rights, warrants or
options to purchase such Person's capital stock.
"Common Stock" shall mean the common stock of the Company.
"Market Price" shall mean, per share of Common Stock, on any date
specified herein: (a) if the Common Stock is not then listed or admitted to
trading on any national securities exchange but is designated as a national
market system security, the
Page 34 of 78 Pages
8
average of the closing bid and ask price of the Common Stock on such date; or
(b) if there shall have been no trading on such date or if the Common Stock is
not so designated, the average of the reported closing bid and asked price of
the Common Stock, on such date as shown by NASDAQ and reported by any member
firm of the NYSE selected by the Company; or (c) if neither (a) nor (b) is
applicable, the Fair Market Value per share determined in good faith by the
Board of Directors of the Company which shall be deemed to be Fair Market Value
unless holders of at least 15% of Common Stock issued or issuable upon exercise
of the Warrants request that the Company obtain an opinion of a nationally
recognized investment banking firm chosen by the Company (who shall bear the
expense) and reasonably acceptable to such requesting holders of the Warrants,
in which event the Fair Market Value shall be as determined by such investment
banking firm.
"Next Round Financing" shall have the meaning given it in the Note
and Warrant Purchase Agreement.
"Next Round Securities" shall have the meaning given it in the Note
and Warrant Purchase Agreement.
"Note and Warrant Purchase Agreement" shall mean that certain note
and warrant purchase agreement between the Company, the Holder and ___________
dated May __, 2000 as the same may be amended from time to time in accordance
with its terms.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Person" shall mean any individual, corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
Section 10. Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, courier
services or personal delivery, (a) if to the Holder of a Warrant, at such
Holder's last known address appearing on the books of the Company; and (b) if to
the Company, at its principal executive office in the United States located at
the address designated for notices in the Note and Warrant Purchase Agreement,
or such other address as shall have been furnished to the party given or making
such notice, demand or other communication. All such notices and communications
shall be deemed to have been duly given: (i) when delivered by hand, if
personally delivered; (ii) when delivered to a courier if delivered by
commercial overnight courier service; and (iii) five (5) Business Days after
being deposited in the mail, postage prepaid, if mailed.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed as of the Issue Date.
Page 35 of 78 Pages
9
BLUEFLY, INC.
By: /s/ ▇▇▇ Seifs
-------------
Name: ▇▇▇ Seifs
Title: Chief Executive Officer
Page 36 of 78 Pages
10
[Form of Assignment Form]
[To be executed upon assignment of Warrants]
The undersigned hereby assigns and transfers this Warrant
Certificate to ___________________ whose Social Security Number or Tax ID Number
is _________________ and whose record address is
_____________________________________, and irrevocably appoints ________________
as agent to transfer this security on the books of the Company. Such agent may
substitute another to act for such agent.
Signature:
-------------------------------
Signature Guarantee:
-------------------------------
Date: ___________________________
Page 37 of 78 Pages
EXHIBIT A-2 to
NOTE AND WARRANT
PURCHASE AGREEMENT
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
BLUEFLY, INC.
SENIOR CONVERTIBLE NOTE
$_________________
New York, New York May __, 2000
FOR VALUE RECEIVED, the undersigned, BLUEFLY, INC., a New York
corporation (the "Payor" or the "Company"), promises to pay to the order of
_________ or its registered assign (the "Payee"), the principal sum of _________
DOLLARS ($_________) and interest on the outstanding principal balance as set
forth herein.
1. Securities Purchase Agreement. This Senior Convertible Note is
the Senior Convertible Note issued pursuant to the Note and Warrant Purchase
Agreement, dated as of May __, 2000, among the Payor, the Payee and _________
(the "Securities Purchase Agreement"). The Payee is entitled to the benefits of
(and subject to the obligations expressly contained in) this Senior Convertible
Note and the Securities Purchase Agreement and may enforce the agreements of the
Payor contained herein and therein and exercise the remedies provided for hereby
and thereby or otherwise available in respect hereto and thereto. Capitalized
terms used herein without definition shall have the meaning ascribed to such
terms in the Securities Purchase Agreement.
2. Interest Rate; Payment.
(a) The outstanding principal balance of this Senior Convertible
Note shall bear interest at an annual rate equal to 8% per annum, with interest
accruing, from and including the date hereof, on a cumulative, compounding
basis. Interest shall be computed on the basis of a 365- or 366-day year, as the
case may be, and the actual number of days elapsed, and shall be payable only
upon repayment of the principal on any Repayment Date (as defined below).
Page 38 of 78 Pages
2
(b) The outstanding balance of any amount owed under this Senior
Convertible Note which is not paid when due shall bear interest at the rate of
2% per annum (the "Default Interest") above the rate that would otherwise be in
effect under this Senior Convertible Note with the Default Interest accruing,
from and including such due date, on a cumulative, compounding basis.
(c) The outstanding principal and all accrued and unpaid interest
shall be paid in full no later than January 2, 2002 (the "Maturity Date"),
unless repaid earlier pursuant to the provisions of Section 3 (the date of any
payment pursuant to Section 3 and the Maturity Date, collectively referred to as
a "Repayment Date"). On a Repayment Date, the Payor shall pay the applicable
amount of principal and interest in lawful money of the United States of America
by wire or bank transfer of immediately available funds to an account designated
by the Payee in writing from time to time.
(3) Prepayment.
(a) Mandatory Prepayment.
(i) Upon the occurrence of an Event of Default
(as defined in Section 5), the outstanding principal of and all accrued interest
on this Senior Convertible Note shall be accelerated and shall automatically
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are expressly waived by the Payor,
notwithstanding anything contained herein to the contrary.
(ii) The Payee shall, at its sole option, have
the right to require the Payor to pay the outstanding principal of and all
accrued interest on this Senior Convertible Note upon the occurrence of any of
the following events: (1) Payor entering into an agreement to effectuate any
sale or other disposition of all or substantially all of its assets, in one
transaction or in a series of transactions, (2) the Company entering into an
agreement to effectuate any consolidation or merger into another entity, or (3)
any sale of a majority of the outstanding equity of the Company (or any other
event that constitutes a Change of Control of the Payor), in one transaction or
in a series of transactions. Immediately upon the occurrence of either of the
events set forth in clauses (1) or (2) above, or immediately upon obtaining
knowledge that any person has entered into an agreement to effectuate, the event
set forth in clause (3) above, the Payor shall give written notice of such event
to the Payee. Change of Control means any Person or "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) other than a Principal Shareholder,
becoming the beneficial owner, directly or indirectly, of outstanding shares of
stock of the Company entitling such Person or Persons to exercise 50% or more of
the total votes entitled to be cast at a regular or special meeting, or by
action by written consent, of the stockholders of the Company in the election of
directors (the term "beneficial owner" shall be determined in accordance with
Rule 13d-3 of the Exchange Act).
Page 39 of 78 Pages
3
(iii) Any mandatory prepayment under this Section
3(a) shall include payment of reasonable costs and expenses, if any, associated
with such prepayment.
(b) Optional Prepayment. The Payor may prepay all or any portion of
this Senior Convertible Note, at any time, by paying an amount equal to the
outstanding principal amount of this Senior Convertible Note, or the portion of
this Senior Convertible Note called for prepayment, together with interest
accrued and unpaid thereon to the date of prepayment and any other amounts due
under this Senior Convertible Note and the Securities Purchase Agreement,
without penalty or premium.
4. Mandatory Conversion.
(a) This Senior Convertible Note plus interest accrued and unpaid
thereon shall be automatically converted simultaneously with the Next Round
Financing (the "Triggering Event') into that number of fully paid and
non-assessable Next Round Securities which is equal to the quotient obtained by
dividing the then outstanding principal amount of this Senior Convertible Note
plus interest accrued and unpaid thereon to the date of conversion by the price
per Next Round Security paid in the Next Round Financing.
(b) Promptly after the Triggering Event the Company shall deliver or
cause to be delivered to the holder of this Senior Convertible Note a
certificate or certificates representing the number of fully paid and
non-assessable shares of Next Round Securities into which this Senior
Convertible Note may be converted. Such conversion shall be deemed to have been
made simultaneously with the conclusion of the Next Round Financing, so that the
rights of the holder as a holder of this Senior Convertible Note shall cease
with respect to this Senior Convertible Note at such time (including, without
limitation, the right to receive the principal of this Senior Convertible Note
other than in the form of Next Round Securities), interest shall cease to accrue
hereon and the person or persons entitled to receive the Next Round Securities
deliverable upon conversion of this Senior Convertible Note shall be treated for
all purposes as having become the record holders of such Next Round Securities
at such time, and such conversion shall be at the conversion rate in effect at
such time.
(c) The Company covenants that it will at all times reserve and keep
available out of its authorized Next Round Securities (at such time as such
Securities are authorized) solely for the purpose of issue or delivery upon
conversion of this Senior Convertible Note as herein provided, such number of
Next Round Securities as shall then be issuable or deliverable upon the
conversion of this Senior Convertible Note. The Company covenants that all Next
Round Securities which shall be so issuable or deliverable shall, when issued or
delivered, be duly and validly issued and fully paid and non-assessable.
Page 40 of 78 Pages
4
5. Events of Default. An "Event of Default" shall occur if:
(a) the Payor shall default in the payment of the principal of or
interest payable on this Senior Convertible Note, when and as the same shall
become due and payable, whether at maturity or at a date fixed for prepayment or
by acceleration or otherwise and such default with respect to the payment of
interest shall continue unremedied for two days;
(b) the Payor shall fail to observe or perform any covenant or
agreement contained in this Senior Convertible Note, the Securities Purchase
Agreement or the Warrants and such failure shall continue for five business days
after Payor receives notice of such failure;
(c) any representation, warranty, certification or statement made by
or on behalf of the Payor in this Senior Convertible Note or the Securities
Purchase Agreement or in any certificate, writing or other document delivered
pursuant hereto shall prove to have been incorrect in any material respect when
made;
(d) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (A) relief
in respect of Payor or of a substantial part of Payor's respective property or
assets, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law (any such law, a "Bankruptcy Law"), (B) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for a substantial part of the property or assets of any Payor,
(C) the winding up or liquidation of any Payor; and such proceeding or petition
shall continue undismissed for 60 days, or an order or decree approving or
ordering any of the foregoing shall be entered;
(e) the Payor shall (A) voluntarily commence any proceeding or file
any petition seeking relief under a Bankruptcy Law, (B) consent to the
institution of or the entry of an order for relief against it, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any
petition described in clause d, (C) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
a substantial part of the property or assets of the Payor, (D) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (E) make a general assignment for the benefit of creditors, (F)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (G) take any action for the purpose of effecting any of
the foregoing;
(f) one or more judgments or orders for the payment of money in
excess of $250,000 in the aggregate shall be rendered against the Payor and such
judgment(s) or order(s) shall continue unsatisfied and unstayed for a period of
30 days;
(g) the Payor shall default in the payment of any principal,
interest or premium, or any observance or performance of any covenants or
agreements,
Page 41 of 78 Pages
5
with respect to indebtedness (excluding trade payables and other indebtedness
entered into in the ordinary course of business) in excess of $50,000 in the
aggregate for borrowed money or any obligation which is the substantive
equivalent thereof and such default shall continue for more than the period of
grace, if any, or of any such Indebtedness or obligation shall be declared due
and payable prior to the stated maturity thereof;
(h) the Payor shall incur any indebtedness senior to this Senior
Convertible Note; or
(i) any material provisions of this Senior Convertible Note, the
Securities Purchase Agreement, or the Warrants shall terminate or become void or
unenforceable or the Payor shall so assert in writing.
6. Senior Status. The indebtedness evidenced by this Senior
Convertible Note is senior in right of payment to all other indebtedness of the
Payor and Payor agrees not to incur any indebtedness, which by its terms is
senior in right of payment to this Senior Convertible Note.
7. Suits for Enforcement.
(a) Upon the occurrence of any one or more Events of Default, the
holder of this Senior Convertible Note may proceed to protect and enforce its
rights by suit in equity, action at law or by other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in
the Securities Purchase Agreement or in aid of the exercise of any power granted
in this Senior Convertible Note, or may proceed to enforce the payment of this
Senior Convertible Note, or to enforce any other legal or equitable right it may
have as a holder of this Senior Convertible Note.
(b) The holder of this Senior Convertible Note may direct the time,
method and place of conducting any proceeding for any remedy available to
itself.
(c) In case of any Event of Default under the Securities Purchase
Agreement, the Payor will pay to the holder of this Senior Convertible Note such
amounts as shall be sufficient to cover the reasonable costs and expenses of
such holder due to such Event of Default, including without limitation, costs of
collection and reasonable fees, disbursements and other charges of counsel
incurred in connection with any action in which the holder prevails.
8. Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in the manner and to the addresses set
forth in Section 11.2 of the Securities Purchase Agreement.
9. Successors and Assigns. This Senior Convertible Note shall inure
to the benefit of and be binding upon the successors and permitted assigns of
the parties hereto. The Payor may not assign any of its rights under this Senior
Convertible Note
Page 42 of 78 Pages
6
without the prior written consent of Payee. The Payee may assign all or a
portion of their rights or obligations under this Senior Convertible Note to an
Affiliate without the prior written consent of the Payor.
10. Amendment and Waiver.
(a) No failure or delay on the part of the Payor or Payee 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 the Payor or
Payee at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any provision
of this Senior Convertible Note, any waiver of any provision of this Senior
Convertible Note and any consent to any departure by the Payor from the terms of
any provision of this Senior Convertible Note, shall be effective (i) only if it
is made or given in writing and signed by the Payor and the Payee and (ii) only
in the specific instance and for the specific purpose for which made or given.
11. Headings. The headings in this Senior Convertible Note are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
12. GOVERNING LAW. THIS SENIOR CONVERTIBLE NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
13. Costs and Expenses. The Payor hereby agrees to pay on demand all
reasonable out-of-pocket costs, fees, expenses, disbursements and other charges
(including but not limited to the fees, expenses, disbursements and other
charges of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the
Payee) of the Payee arising in connection with any consent or waiver granted or
requested hereunder or in connection herewith, and any renegotiation, amendment,
work-out or settlements of this Senior Convertible Note or the indebtedness
arising hereunder.
14. Waiver of Jury Trial and Setoff. The Payor hereby waives trial
by jury in any litigation in any court with respect to, in connection with, or
arising out of this Senior Convertible Note or any instrument or document
delivered pursuant to this Senior Convertible Note, or the validity, protection,
interpretation, collection or enforcement thereof, or any other claim or dispute
howsoever arising, between any Payor and the Payee; and the Payor hereby waives
the right to interpose any setoff or counterclaim or cross-claim in connection
with any such litigation, irrespective of the nature of such setoff,
counterclaim or cross-claim except to the extent that the failure so to assert
any such setoff, counterclaim or cross-claim would permanently preclude the
prosecution of the same.
Page 43 of 78 Pages
7
15. Consent to Jurisdiction. The Payor hereby irrevocably consents
to the nonexclusive jurisdiction of the courts of the State of New York and of
any federal court located in such State in connection with any action or
proceeding arising out of or relating to this Senior Convertible Note or any
document or instrument delivered pursuant to this Agreement.
16. Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
17. Entire Agreement. This Senior Convertible Note, the Warrants and
the Securities Purchase Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter hereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This Senior
Convertible Note supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
18. Further Assurances. The Payor shall execute such documents and
perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any governmental authority or any other Person)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Senior Convertible Note.
BLUEFLY, INC.
By:___________________________
Name:
Title:
Page 44 of 78 Pages
Schedule 3.4
Schedule 2.2
SHARES AND PURCHASE PRICE
Purchase Price and
Aggregate Principal
Amount of Senior
Purchaser Convertible Note
------------------------------- ----------------
Quantum Industrial Partners LDC $ 2,904,800
SFM Domestic Investments LLC $ 95,100
TOTAL $3,000,000.00