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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
THE SECURITIES EXCHANGE ACT OF 1934
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DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) May 13, 2002
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NORDSTROM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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WASHINGTON 0-6074 91-0515058
(STATE OR OTHER (COMMISSION FILE (I.R.S. EMPLOYER
JURISDICTION OF NUMBER) IDENTIFICATION NO.)
INCORPORATION)
1617 SIXTH AVENUE, SEATTLE, WASHINGTON 98101
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (206) 628-2111
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INAPPLICABLE
(FORMER NAME OR FORMER ADDRESS IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS
On May 13, 2002 the Registrant entered into an agreement (the "Stock
Purchase Agreement") with the holders of the outstanding shares of series C
preferred stock of Nordstrom.com, Inc. Pursuant to the Agreement, the
Registrant will acquire all outstanding shares of Nordstrom.com, Inc. series
C preferred stock (approximately 4.8 million shares) for approximately $70
million. After this transaction, the Registrant will own all outstanding
shares of Nordstrom.com, Inc. preferred stock, leaving 135,000 shares of
common stock and options to acquire 2,041,250 shares of common stock of
Nordstrom.com, Inc. held by current and former employees, officers and
directors of Nordstrom.com, Inc.
(c) EXHIBITS
10.1 Stock Purchase Agreement dated May 13, 2002 between the Registrant and
the parties listed on Schedule A thereto.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NORDSTROM, INC.
By:/s/ Michael G.Koppel
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Michael G. Koppel
Executive Vice President and
Chief Financial Officer
Dated: May 15, 2002
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
10.1 Stock Purchase Agreement dated May 13, 2002 between the
Registrant and the investors listed on Schedule A thereto.
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of May 13,
2002, and is by and among the holders of Series C Preferred Stock of
Nordstrom.com, Inc. listed on the attached Schedule A (the "Stockholders")
and Nordstrom, Inc., a Washington corporation ("Purchaser").
The parties to this Agreement are also parties to a Put Agreement dated
as of November 1, 1999 (the "Put Agreement"), regarding the shares of
Series C Preferred Stock of Nordstrom.com, Inc. (the "Company"). The parties
mutually intend to provide for the sale of all Stockholders' ownership in the
Company and to extinguish any rights and obligations of either party
contained in the Put Agreement at the Closing by entering into and performing
the terms and conditions of this Agreement.
1. Sale of Shares.
1.1 Sale. Subject to the terms and conditions hereof, each
Stockholder hereby agrees to sell to Purchaser, and Purchaser hereby agrees
to purchase from each Stockholder, the shares of Series C Preferred Stock of
the Company listed next to such Stockholder's name on the attached Schedule A
(the "Shares") free and clear of all liens, encumbrances and charges
whatsoever for a purchase price of fourteen and 569/1000 dollars ($14.569)
per share and consisting of an aggregate purchase price for all Shares of
seventy million four hundred thirteen and 68/100 dollars ($70,000,413.68)
(the "Purchase Price"), payable in cash.
1.2 Closing. The closing of the sale and purchase of the
Shares under this Agreement shall be held at 10:00 a.m. Pacific Daylight Time
on the later of (a) May 31, 2002, or earlier, upon at least one business
days' prior notice to the Stockholders, at the Purchaser's election, or (b)
the first business day after the expiration or earlier termination of the
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), at the offices of Lane Powell Spears
Lubersky LLP, Seattle, Washington (the "Closing").
1.3 Delivery. At the Closing and upon full payment of the
Purchase Price of all the Shares, the Stockholders will deliver to the
Purchaser stock powers for all of the Shares, duly endorsed for transfer of
the Shares to the Purchaser dated the date of the Closing.
2. Stockholders' Warranties and Representations. Each Stockholder
hereby represents and warrants to the Purchaser that as of the date hereof
and as of the Closing, the following statements are and will be true and
correct:
2.1 Title. Such Stockholder has good and marketable title to
all of its Shares, free and clear of any and all liens, options, adverse
claims and encumbrances. The Purchaser will acquire good, valid, marketable
and indefeasible title to their respective Shares, free and clear of any and
all claims, liens, charges, encumbrances and rights of third parties, other
than those created by or through the Purchaser. The foregoing
representations are subject to compliance with Section 3.7 of the Preferred
Stock Purchase Agreement dated as of October 31, 1999 by and among the
Company, Nordstrom.com Holdings, Inc. ("Holdings") and the Stockholders (the
"Preferred Stock Purchase Agreement").
2.2 Authority to Sell. Such Stockholder has all necessary
partnership or limited liability company power, as the case may be, and
authority to execute and deliver this Agreement, to sell, assign, transfer
and deliver its Shares to Purchaser and to consummate the transactions
provided for in this Agreement. The execution, delivery and performance of
this Agreement by such Stockholder does not and will not violate any
provision of any law, regulation or order applicable to such Stockholder, and
does not and will not result in the breach of, or constitute a default under,
any indenture or other agreement or instrument to which such Stockholder is a
party or by which such Stockholder or any of such Stockholder's assets may be
bound or affected, or, except for (a) the advance notification requirements
of HSR Act or (b) such notifications to the Company as may be required
pursuant to Section 3.7 of the Preferred Stock Purchase Agreement, require
any filing with or notification to any governmental authority or otherwise.
The foregoing representation is qualified by those violations, breaches and
defaults that (a)
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would not (i) individually or in the aggregate materially adversely affect
such Stockholder's ability to consummate the sale of the Shares in accordance
with the terms hereof, (ii) materially adversely affect the Shares or (iii)
result in the imposition of any liability, cost or expense on the Purchaser,
Holdings, the Company or the LLC (as defined below) in excess of $5,000 or
(b) are violations of law asserted by the Company or its stockholders. This
Agreement is the valid and binding obligation of each Stockholder and is
legally enforceable against each Stockholder in accordance with its terms.
2.3 Investigation and Access. Such Stockholder has had
access to the books and financial and operational records of the Company and
to all of the documents and information relating to the operations and
activities of the Company. Prior to the execution of this Agreement, each
Stockholder examined such books, records, documents, and information to its
satisfaction, and has been given the opportunity to ask, and has asked and
received answers to any questions it has had concerning any and all aspects
of the operations and activities of the Company.
2.4 Ownership. Upon consummation of the sale provided for in
this Agreement, such Stockholder will not own any shares of the issued and
outstanding stock of the Company, nor will such Stockholder have any direct
or indirect right or interest in acquiring any further interest in the
Company or in Nordstrom.com LLC, a limited liability company (the "LLC").
Other than options issued to employees or to directors or warrants issued to
Lifesketch Employee Trust, such Stockholder is not aware of any other
outstanding rights, options or warrants to acquire any interest in the
Company or the LLC.
3. Purchaser's Warranties and Representations. The Purchaser hereby
represents and warrants to each Stockholder that as of the date hereof and as
of the Closing, the following statements are and will be true and correct:
3.1 Authority to Purchase. The Purchaser has all necessary
corporate power and authority to execute and deliver this Agreement, to
purchase the Shares and to consummate the transactions provided for in this
Agreement. The execution, delivery and performance of this Agreement by the
Purchaser does not and will not violate any provision of any law, regulation
or order applicable to the Purchaser, and does not and will not result in the
breach of, or constitute a default under, any indenture or other agreement or
instrument to which the Purchaser is a party or by which the Purchaser's
assets may be bound or affected, or, except for (a) the advance notification
requirements of HSR Act or (b) such notifications to the Company as may be
required pursuant to Section 3.7 of the Preferred Stock Purchase Agreement,
require any filing with or notification to any governmental authority or the
Company. The foregoing representation is qualified by those violations,
breaches or defaults that (a) would not individually or in the aggregate
materially adversely affect such Stockholder's ability to consummate the sale
of the Shares hereunder or (b) are violations of law asserted by the
stockholders of the Company. This Agreement is the valid and binding
obligation of the Purchaser and is legally enforceable against the Purchaser
in accordance with its terms.
3.2 Familiarity With Business. The Purchaser has had access
to the books and financial and operational records of the Company and to all
of the documents and information relating to the operations and activities of
the Company. Prior to the execution of this Agreement, the Purchaser has
examined such books, records, documents, and information to its satisfaction,
and has been given the opportunity to ask, and has asked and received answers
to any questions it has had concerning any and all aspects of the operations
and activities of the Company. The Purchaser is intimately familiar with the
business affairs, books and records of the Company.
3.3 Investment Intent. The Purchaser is purchasing the
Shares for investment for Purchaser's own account only and not with a view
to, or for resale in connection with, any "distribution" thereof within the
meaning of the Securities Act of 1933, as amended.
4. Condition to Closing.
4.1 Condition to the Stockholders' Obligations at Closing.
Each Stockholder's obligation to sell its Shares at the Closing is subject to
the fulfillment on or prior to the Closing of the following condition, which
may be waived in writing in whole or in part by the holders of a majority of
the Shares.
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(a) The representations and warranties made by the
Purchaser herein shall be true and correct when made, and shall be true and
correct at the Closing with the same force and effect as if they had been
made on and as of the same date; and the Purchaser shall have performed all
obligations and conditions herein required to be performed or observed by it
on or prior to the Closing, except for such failures to perform as to which
the Purchaser has provided advance written notice to the Stockholders and
that would not materially adversely affect the Purchaser's ability to
consummate the purchase of the Shares in a timely manner and perform its
obligations hereunder.
4.2 Conditions to the Purchaser's Obligations at Closing.
The Purchaser's obligation to purchase the Shares at the Closing is subject
to the fulfillment on or prior to the Closing of the following conditions,
any of which may be waived in writing in whole or in part by the Purchaser .
(a) The representations and warranties made by all of
the Stockholders herein shall be true and correct when made, and shall be
true and correct at the Closing with the same force and effect as if they had
been made on and as of the same date; and the Stockholders shall have
performed all obligations and conditions herein required to be performed or
observed by them on or prior to the Closing, except for such failures to
perform as to which the Stockholders have provided advance written notice to
Purchaser and that would not materially adversely affect the Stockholders'
ability to consummate the sale of the Shares in a timely manner and perform
their respective obligations hereunder.
(b) The Stockholders shall have complied with the
notice requirement under Section 3.7 of the Preferred Stock Purchase
Agreement.
4.3 Conditions to Each Party's Obligations at Closing. Each
party's respective obligations to purchase or sell the Shares at the Closing
are subject to the fulfillment of the condition that (a) any waiting period
(and any extension thereof) applicable to the consummation of the
transactions contemplated by this Agreement under the HSR Act shall have
expired or been terminated and (b) no provision of any applicable law and no
judgment, restraining order, preliminary injunction, order or decree of any
court or other governmental authority of competent jurisdiction shall be in
effect and have the effect of prohibiting or enjoining the consummation of
the Closing.
5. Further Agreements.
5.1 Voting Agreement. Except for matters described or
provided for in the Proxy (as defined below), each Stockholder agrees that,
from the date hereof until the Closing, at (a) any meeting of the
stockholders of the Company or the holders of Series B and Series C Preferred
Stock of the Company, however called, or (b) in any action by written consent
of the stockholders of the Company or the holders of Series B and Series C
Preferred of the Company, such Stockholder shall not vote its Shares in favor
of, or consent with respect to its Shares to, any matter or agreement that
would require the approval of the holders of at least a majority of the then
outstanding shares of Series B and Series C Preferred Stock of the Company
(voting together as a single class and not as separate series and on an as
converted basis). Nothing in this Section 5.1 is intended to limit
Purchaser's or its representative's ability to exercise its rights under the
Proxy.
5.2 Proxy. Contemporaneously with the execution of this
Agreement, the Stockholders will execute and deliver the appropriate limited
proxy in the forms attached hereto as Exhibit A and Exhibit B (the "Proxy").
5.3 Company Information. Each Stockholder shall continue to
maintain the confidentiality of all confidential and proprietary information
of the Company.
5.4 Nondisparagement. Stockholders agree not to make any
statements that are defamatory in nature or in any way disparaging of the
Purchaser, the Company, the LLC or Holdings, or their respective officers,
directors, members, employees or agents. Purchaser and Holdings agree not to
make any statements that are defamatory in nature or in any way disparaging
of Stockholders, their respective officers, directors, partners, members,
employees or agents.
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5.5 HSR Filing; Further Action. Each of the parties hereto
shall make its respective filings, if any, no later than four business days
after the date hereof and thereafter promptly make any other required
submissions, if any, under the HSR Act. Each of the parties shall take, or
cause to be taken, all appropriate action, and do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions provided for in this
Agreement. Without in any way limiting the foregoing, Purchaser shall (a)
pay any fees that may be payable in connection with advance notification or
any other submissions under the HSR Act, (b) promptly furnish all materials
required by any governmental authority and (c) (i) from the date hereof
through July 31, 2002, take all reasonable actions and use all reasonable
efforts to have declared effective or obtained all filings, approvals or
consents or other action by governmental authorities or other third parties,
as may be required under the HSR Act, other federal antitrust laws or
otherwise for the consummation of the Closing and (ii) thereafter, do all
things necessary in order to effect the foregoing and consummate the Closing,
including any restructuring of its business or holding separate or otherwise
disposing of all or part of the Shares as may be required thereby. The
foregoing shall not prevent the Stockholders in the event the Closing has not
occurred prior to September 1, 2002, from exercising their right under
Section 1.1 of the Put Agreement; provided, however, that: (a) if Purchaser
complies with its obligations under the preceding sentences of this Section
5.5, (b) Purchaser is not in breach of any of its other obligations herein
and (c) the Closing has not occurred on or before August 31, 2002 solely
because of the continuation of the waiting period or extension thereof under
the HSR Act, then (x) the Stockholders shall forebear during the term of this
Agreement from exercising, during the thirty (30) day period beginning
September 1, 2002 (the "Exercise Period"), their right under Section 1.1 of
the Put Agreement (the "Put Right"), (y) the Purchase Price shall be
increased to include interest from June 15, 2002 through Closing at a rate
equivalent to the Prime rate as such rate may be published from time to time
in the Wall Street Journal and (z) the Exercise Period (but not any event
that would give rise to a termination of the Put Right) and the applicable
Put Closing Date as referenced in Section 1.2(b)(i)(A) of the Put Agreement
(the "Put Closing Date") shall be tolled until the earlier of (1) the
Closing, in which the event the Put Right shall be extinguished or (2) the
termination of this Agreement in accordance with Section 6.9 hereof, in which
event the Exercise Period and the Put Closing Date, each as appropriately
tolled, shall be reinstated and the Put Right shall be exercisable as
otherwise provided in Section 1.1 of the Put Agreement. No Initial Public
Offering (as defined in the Put Agreement) or Series D Preferred Stock
financing described on Exhibit B to the Put Agreement (a "Series D
Financing") approved by the board of directors of the Company during such
time as the Proxy is outstanding shall constitute an Initial Public Offering
or Series D Financing for purposes of Section 1.1 of the Put Agreement.
5.6 Releases and Covenants not to Sue.
(a) Except for the obligations set forth in this
Agreement, and effective upon the Closing, Purchaser and Holdings, on their
own behalf and on behalf of all past and present and future affiliates
(including the Company, the LLC and any other entity to the extent Purchaser
now has or hereafter obtains the right or ability to provide a release) of
Purchaser and Holdings, their respective successors, assigns, shareholders,
partners, officers, directors, members, attorneys, accountants, agents,
lenders, insurers, managers and employees to the extent Purchaser or Holdings
have the right or ability to provide such release on their behalf ("Purchaser
Releasors"), release, absolve and forever discharge each of the Stockholders,
and each of their respective successors, assigns, shareholders, partners,
officers, directors, members, attorneys, accountants, agents, lenders,
insurers, managers and employees ("Stockholder Releasees"), separately and
collectively, from any and all manner of action or actions, cause or causes
of action in law or equity, and all suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, losses, costs or expenses
of any kind or nature, alleged or not yet alleged, known or not yet known,
which any Purchaser Releasor now has or hereafter may claim to have against
the Stockhodler Releasees, with respect to the Shares, the Company, LLC,
Holdings and the transactions contemplated under or in connection with that
certain Joint Venture Agreement between the Purchaser and the Company dated
August 24, 1999 (the "Joint Venture Agreement"), and the exhibits and
schedules thereto ("Purchaser Released Claims"). From and after the Closing,
Purchaser agrees that it will not, and will cause each and every other
Purchaser Releasor directly or indirectly controlled by Purchaser not to, sue
any Stockholder Releasee based in whole or in part on any Purchaser Released
Claim, and Purchaser agrees to indemnify and hold harmless each Stockholder
Releasee for and from any assertion against such Stockholder Releasee of a
Purchaser Released Claim, including but not limited to legal and accounting
fees and other costs of defense and liability.
(b) Except for any and all rights of indemnification
and exculpation with respect to the Stockholders' representative on the
Company's board of directors related to his position as a director of the
Company,
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including any such right under the Company's Restated Certificate of
Incorporation, Bylaws or any insurance policy with respect thereto, and except
for the obligations set forth in this Agreement, and effective upon the
Closing, each Stockholder, on behalf of itself, and all past and present and
future affiliated entities and their respective successors, assigns,
shareholders, partners, officers, directors, members, attorneys, accountants,
agents, lenders, insurers, managers and employees to the extent each
Stockholder has the right or ability to provide such release on their behalf
("Stockholder Releasors") releases, absolves and forever discharges Purchaser,
the Company, LLC, Holdings, and their respective successors, assigns,
shareholders, partners, officers, directors, members, attorneys, accountants,
agents, lenders, insurers, managers and employees ("Purchaser Releasees"),
separately and collectively, from any and all manner of action or actions,
cause or causes of action in law or equity, and all suits, debts, liens,
contracts, agreements, promises, liabilities, claims, demands, losses, costs or
expenses of any kind or nature, alleged or not yet alleged, known or not yet
known, which any such Stockholder Releasor now has or hereafter may claim to
have against the Purchaser Releasees, with respect to the Shares, the Company,
LLC, Holdings and the transactions contemplated under or in connection with the
Joint Venture Agreement and the exhibits and schedules thereto ("Stockholder
Released Claims"). From and after the Closing, such Stockholder will not, and
will cause each and every other of its Stockholder Releasors directly or
indirectly controlled by such Stockholder not to, sue any Purchaser Releasee
based in whole or in part on any Stockholder Released Claim, and each
Stockholders agrees to indemnify and hold harmless each Purchaser Releasee
for and from any assertion against such releasee by such Stockholder or its
Stockholder Releasors of a Stockholder Released Claim, including but not
limited to legal and accounting fees and other costs of defense and
liability.
(c) The parties represent that they are not aware of
any claim by either of them other than the claims that are released by this
Agreement. Stockholders and the Purchaser acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Stockholders and the Purchaser, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any
other statute or common law principles of similar effect.
5.7 Additional Indemnification of Stockholder Releasees. In
addition to the indemnification provided above, Purchaser agrees to indemnify
and hold harmless each Stockholder Releasee, separately and collectively,
from and against any and all manner of action or actions, cause or causes of
action in law or equity, and all suits, debts, liens, contracts, agreements,
promises, liabilities, claims, demands, damages, losses, costs, expenses
(including but not limited to any legal and accounting expenses), or any
other right that any person or entity may assert relating to, or arising out
of or in connection with (a) matters which would require the approval of
holders of the Series B and Series C Preferred Stock of the Company (voting
together as a single class and not as separate series and on an as converted
basis), (b) this Agreement (other than any claim for breach of an obligation
of a Stockholder under this Agreement), including the grant of the Proxy or
any exercise of the Proxyholder's rights under the Proxy, or (c) occurrences,
events, acts or omissions involving the Company, the LLC or Holdings after
the Closing, including, but not limited to, fees and other costs of defense
and liability.
5.8 Reimbursement of Indemnification Expenses. In the event
that any third party claim is made for which indemnity is provided hereunder,
the party seeking indemnity ("Indemnified Party") shall promptly notify the
party from whom indemnity is sought ("Indemnifying Party"). The
Indemnifying Party shall reimburse the Indemnified Party on a current basis
for its reasonable expenses of investigation, reasonable attorneys' fees and
expenses and reasonable out-of-pocket expenses incurred in the defense of any
claims as to which indemnification is available hereunder, in addition to any
finally-determined liability or reasonable settlement amount.
5.9 Mutual Support. Each party will not directly or
indirectly take any action or assist any other person or entity to take any
action which would preclude the consummation of this transaction in
accordance with the terms of this Agreement or the exercise of any rights
with respect thereto.
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6. Miscellaneous
6.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the state of Washington as applied to agreements
among Washington residents, made and to be performed entirely within the
state of Washington.
6.2 Survival. The representations, warranties, covenants,
and agreements made herein shall survive any investigation made by Purchaser
and the Closing of the transaction contemplated hereby.
6.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
6.4 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement among the parties with regard to the
subject matter hereof and this Agreement supercedes all other written and
oral agreements of the parties with respect to these matters.
Notwithstanding the foregoing, the provisions of the Put Agreement shall
survive until the Closing.
6.5 Amendments. Purchaser and holders of a majority of the
Shares may amend, modify or supplement this Agreement only in writing, duly
executed on behalf of each of the parties to be bound thereby.
6.6 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable laws, such provision
shall be excluded from this Agreement, and the balance of this Agreement
shall be interpreted as if such provisions were so excluded and shall be
enforceable in accordance with its terms.
6.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
6.8 Further Action. Each party shall, without further
consideration, take such further action and execute and deliver such further
documents as may be reasonably requested by the other party in order to carry
out the provisions and purposes of this Agreement.
6.9 Termination. This Agreement and the Proxy may be
terminated at any time prior to the Closing:
(a) by mutual written consent of the Purchaser and
holders of a majority of the Shares;
(b) by notice of the Purchaser to the Stockholders,
or, by holders of a majority of the Shares to the Purchaser:
(i) if any governmental authority of
competent jurisdiction shall have issued a final nonappealable order
enjoining or otherwise prohibiting the consummation of the purchase and sale
of the Shares, notwithstanding Purchaser's willingness to comply with its
obligations under clause (c)(ii) of the third sentence of Section 5.5 hereof;
or
(ii) if the Closing shall have not been
consummated on or before December 31, 2002, unless the failure to consummate
the Closing by such date is the result of (A) a breach of, or a delay in
fulfilling its obligations under, this Agreement by the party seeking to
terminate this Agreement or (B) a failure to satisfy the condition to Closing
set forth in Section 4.3(a) hereof; or
(c) by notice of holders of a majority of the Shares
to the Purchaser, if the Closing shall not have been consummated on or before
December 31, 2002 solely as a result of the failure to satisfy the closing
condition set forth in Section 4.3 hereof, unless the failure to satisfy such
Closing condition is the result a breach of, or a delay in fulfilling its
obligations under, this Agreement by the Stockholders.
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In the event that this Agreement is validly terminated as provided in
this Section 6.9, then each of the parties herein shall be relieved of their
duties and obligations arising under this Agreement after the date of such
termination and such termination shall be without liability to the
Stockholders or the Purchaser; provided, however, that the obligations of the
parties set forth in Sections 5.5, 5.7 and 5.8 and in Sections 6.1 through
6.13 hereof shall survive any such termination and shall be enforceable
hereunder; provided, further, however, that nothing in this Section 6.9 shall
relieve the Stockholders or the Purchaser of any liability for breach of this
Agreement.
6.10 Stockholder Representatives. Each Stockholder signs
solely in its capacity as the owner of its Shares and nothing contained
herein shall limit or affect any action taken by any individual who is a
director of the Company in his or her capacity as a director of the Company
and none of such actions in such capacity shall be deemed to constitute a
breach of this Agreement.
6.11 Specific Performance. The Purchaser and Stockholders
acknowledge and agree that the other parties hereto would be damaged
irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached.
Accordingly, each of the parties agrees the other parties will be entitled to
an injunction to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions of this
Agreement in any competent court having jurisdiction over the parties, in
addition to any other remedy to which they might be entitled at law or in
equity.
6.12 Assignment. Except for an assignment or transfer to a
wholly-owned subsidiary with prior notice to the non-assigning party, this
Agreement shall not be assignable or transferable, in whole or in part, by
any of the parties hereto except upon the express prior written consent of
each of the other parties hereto; provided, however, that no such assignment
or transfer shall relieve the assignor of any of its obligations under this
Agreement.
6.13 Attorneys' Fees. If it shall be necessary for any party
to this Agreement to employ an attorney to enforce their rights pursuant to
this Agreement because of the default of
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another party(s), the defaulting party(s) shall reimburse the prevailing
party for reasonable attorneys' fees and expenses.
IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of the
date first above written.
BENCHMARK CAPITAL PARTNERS III, L.P. NORDSTROM, INC.
as nominee for
Benchmark Capital Partners III, L.P.
Benchmark Founders Fund III, L.P.
Benchmark Founders Fund III-A, L.P By: /s/ Blake W. Nordstrom
Benchmark Members Fund III, L.P. ------------------------------
Its: President
------------------------------
By: Benchmark Capital Management Co. III, L.L.C., its general partner
By: /s/ Steven M. Spurlock
---------------------------------
Its: Managing Member
---------------------------------
MADRONA RETAIL PARTNERS I, LLC
By: /s/ Thomas Alberg
---------------------------------
Its: Managing Member
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8
SCHEDULE A
HOLDERS OF SERIES C PREFERRED STOCK OF NORDSTROM.COM, INC.
Name of Stockholder Number of Shares of Series C Preferred
Stock
------------------- --------------------------------------
Benchmark Capital Partners III, L.P. 3,217,503.15
Benchmark Founders' Fund III, L.P. 938,223.87
Benchmark Founders' Fund III-A, L.P. 254,128.83
Benchmark Members' Fund III, L.P. 94,594.59
Madrona Retail Partners I, LLC 300,300.30
EXHIBIT A
LIMITED PROXY
OF THE STOCKHOLDERS OF
NORDSTROM.COM, INC.
May ___, 2002
The undersigned hereby appoint Blake W. Nordstrom and Joel T. Stinson,
or either of them, with full power and substitution, proxies and attorney's
in fact, to vote all shares of stock of Nordstrom.com, Inc. (the "Company")
held by the undersigned with respect to the nomination, appointment,
election, or removal of any person as a member of the board of directors of
Nordstrom.com, Inc., such appointed proxies to have all powers and rights the
undersigned would possess if personally voted by the undersigned with respect
thereto, including the power to consent as stockholder of the Company to
effect any such action and to waive any notice with respect thereto. This
Proxy is coupled with an interest and irrevocable until Purchaser acquires
ownership of the shares represented hereby. This Proxy shall terminate as
provided in Section 6.9 of that certain Stock Purchase Agreement dated as of
May __, 2002 by and among the holders of Series C Preferred Stock of the
Company listed on the attached Schedule A thereto and Nordstrom, Inc., a
Washington corporation; provided, however, that any such termination shall
not affect the validity of any action previously taken with respect to this
Proxy.
This Proxy may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument,
and shall be effective as of the date first set forth above.
Date of Execution: May ___, 2002 BENCHMARK CAPITAL PARTNERS III, L.P.
as nominee for
Benchmark Capital Partners III, L.P.
Benchmark Founders Fund III, L.P.
Benchmark Founders Fund III-A, L.P
Benchmark Members Fund III, L.P.
By: Benchmark Capital Management
Co. III, L.L.C., its general
Partner
By:________________________________
Its: Managing Member
EXHIBIT B
LIMITED PROXY
OF THE STOCKHOLDERS OF
NORDSTROM.COM, INC.
May ___, 2002
The undersigned hereby appoints Blake W. Nordstrom and Joel T. Stinson,
or either of them, with full power and substitution, proxies and attorney's
in fact, to vote all shares of stock of Nordstrom.com, Inc. (the "Company")
held by the undersigned with respect to the nomination, appointment,
election, or removal of any person as a member of the board of directors of
Nordstrom.com, Inc., such appointed proxies to have all powers and rights the
undersigned would possess if personally voted by the undersigned with respect
thereto, including the power to consent as stockholder of the Company to
effect any such action and to waive any notice with respect thereto. This
Proxy is coupled with an interest and irrevocable until Purchaser acquires
ownership of the shares represented hereby. This Proxy shall terminate as
provided in Section 6.9 of that certain Stock Purchase Agreement dated as of
May __, 2002 by and among the holders of Series C Preferred Stock of the
Company listed on the attached Schedule A thereto and Nordstrom, Inc., a
Washington corporation; provided, however, that any such termination shall
not affect the validity of any action previously taken with respect to this
Proxy.
This Proxy may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument,
and shall be effective as of the date first set forth above.
Date of Execution: May __, 2002 MADRONA RETAIL PARTNERS I, LLC
By:________________________________
Its: Managing Member