Exhibit 2(f)
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated as
of February 11, 2000 among NewCheck Corporation, d/b/a
Productivity Solutions, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware
(hereinafter referred to as the "Company"), Electronic Retailing
Systems International, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware
(hereinafter referred to as "ERS"), the other purchasers of the
Company's Series C Convertible Preferred Stock, $0.0001 par value
(hereinafter referred to as the "Senior Preferred Stock"),
identified on Schedule 1 annexed hereto (hereinafter, together
with ERS, referred to as the "Purchasers", and each individually,
as a "Purchaser"), and the other Holders (as hereinafter
defined).
W I T N E S S E T H :
WHEREAS, the Company and the holders of the Series A
Convertible Preferred Stock $.0001 par value (hereinafter
referred to as the "Series A Preferred Stock"), of the Company
are parties to a Rights Agreement dated as of June 30, 1994
(Section 1 of which is hereinafter referred to as the "1994
Agreement"), with respect to the registration by the Company of
the shares of its common stock, $.0001 par value (as the same may
be constituted from time to time, hereinafter referred to as the
"Common Stock"), issuable upon conversion of the Series A
Preferred Stock, and of the other Registrable Securities
identified therein; and
WHEREAS, the Company and the holders of the Series B1
Convertible Preferred Stock, $.0001 par value (hereinafter
referred to as the "Series B1 Preferred Stock"), of the Company
and the holders of the Series B2 Convertible Preferred Stock,
$.0001 par value (hereinafter referred to as the "Series B2
Preferred Stock"), of the Company are parties to a Registration
Rights Agreement dated May 13, 1998 (hereinafter referred to as
the "1998 Agreement"), with respect to registration by the
Company of the shares of Common Stock issuable upon conversion of
the Series B1 Preferred Stock and the Series B2 Preferred Stock,
and of the other Registrable Securities identified therein; and
WHEREAS, the Company and the Purchasers are parties to a
Stock and Convertible Note Purchase Agreement dated as of even
date herewith (hereinafter referred to as the "Stock and Note
Purchase Agreement"), providing for, among other matters, the
issuance and delivery by the Company: (i) to the Purchasers of
shares of the Senior Preferred Stock, such shares convertible
into shares of the Common Stock, (ii) to ERS of the Company's 8%
Convertible Note dated as of even date herewith (hereinafter
referred to as the "ERS Convertible Note"), and (iii) to AG
Checkout LLC of the Company's 8% Convertible Note dated as of
even date herewith (hereinafter referred to as the "AG
Convertible Note" and together with the ERS Convertible Note,
referred to herein as the "Convertible Notes"), such Convertible
Notes convertible into shares of Senior Preferred Stock; and
WHEREAS, the Company and ERS are parties to a Management
Agreement dated as of even date herewith (hereinafter referred to
as the "Management Agreement"), providing for, among other
matters, the issuance and delivery by the Company to ERS of
warrants (hereinafter referred to as the "Warrants") exercisable
with respect to shares of the Common Stock evidenced by the terms
and conditions of two Warrant Certificates, each dated as of even
date herewith, delivered by the Company to ERS;
WHEREAS, it is a condition to the acquisition and acceptance
by the Purchasers of the Senior Preferred Stock and the
Convertible Notes, and to the execution and delivery of the
Management Agreement by ERS, that the 1994 Agreement and the 1998
Agreement be amended and restated as set forth herein and that
the Company execute and deliver this Agreement to the Purchasers;
and
WHEREAS, the holders of the Series A Preferred Stock party
hereto constitute a majority of the record and beneficial holders
of the Registrable Securities (as set forth in the 1994
Agreement) and the holders of the Series B1 Preferred Stock and
Series B2 Preferred Stock party hereto constitute the Majority
Holders (as set forth in the 1998 Agreement);
NOW, THEREFORE, in consideration of the agreements, premises
and the mutual covenants contained herein the parties, intended
to be legally bound, hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, the
following terms shall have the respective meanings set forth
below (such meanings being equally applicable to both the
singular and plural form of the terms defined):
"Agreement" shall mean this Amended and Restated
Registration Rights Agreement, including all amendments,
modifications and supplements and any exhibits or schedules to
any of the foregoing, and shall refer to the Agreement as the
same may be in effect at the time such reference becomes
operative.
"Amended and Restated Securityholders Agreement" shall mean
the Amended and Restated Securityholders Agreement dated as of
even date herewith among the Company, the Purchasers and the
holders of the Series B1 Preferred Stock and the holders of the
Series B2 Preferred Stock, which in all respects amends and
restates the Stockholders Agreement dated as of May 13, 1998
among the Company and such holders.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be
closed in the State of New York.
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency then administering the
Securities Act and other federal securities laws.
"Conversion Shares" shall mean shares of Common Stock issued
upon conversion of shares of Series A Preferred Stock, Series B1
Preferred Stock, Series B2 Preferred Stock or Senior Preferred
Stock (including, without limitation, Senior Preferred Stock
issuable upon conversion of the Convertible Notes), and upon
exercise of the Warrants.
"Demand Holders" shall mean Holders holding at the time
shares of Senior Preferred Stock, and the Convertible Notes,
representing at least 60% of the sum of (x) all then outstanding
Conversion Shares issued upon conversion of Senior Preferred
Stock (including, without limitation, Senior Preferred Stock
issuable upon conversion of the Convertible Notes), (y) all
shares of Common Stock issuable to the holders of then
outstanding Senior Preferred Stock, and (z) all shares of Common
Stock issuable to the holders of Senior Preferred Stock issuable
upon conversion of the Convertible Notes; except that the
foregoing reference to "60%" shall be reduced to "30%" subsequent
to a Qualified Public Offering or, if earlier, 18 months from and
after the date hereof with respect to a Qualified Public
Offering.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, or any similar federal
statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Holder" shall mean the holder of Conversion Shares, or
shares of Series A Preferred Stock, Series B1 Preferred Stock,
Series B2 Preferred Stock or Senior Preferred Stock (including,
without limitation, Senior Preferred Stock issued upon conversion
of the Convertible Notes), or of the Convertible Notes or the
Warrants.
"NASD" shall mean the National Association of Securities
Dealers, Inc., or any successor corporation thereto.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency
or political subdivision thereof.
"Qualified Public Offering" shall have the meaning ascribed
to such term in the Senior Preferred Certificate of Designation.
"Registrable Securities" shall mean the shares of Common
Stock from time to time issued or issuable to the holders of the
Series A Preferred Stock, Series B1 Preferred Stock, Series B2
Preferred Stock, and Senior Preferred Stock (including, without
limitation, shares of Senior Preferred Stock issuable upon
conversion of the Convertible Notes), upon the conversion
thereof, or to the holders of the Warrants upon exercise thereof,
or hereinafter acquired by such holders or which they hereinafter
obtain the right to acquire pursuant to the terms of the Amended
and Restated Securityholders Agreement or otherwise; provided,
however, that a security ceases to be a Registrable Security when
it is no longer a Restricted Security.
"Registration Statement" shall mean any registration
statement of the Company which covers Registrable Securities
pursuant to the provisions of this Agreement, including the
prospectus, amendments (including post-effective amendments) and
supplements to such Registration Statement, all exhibits and all
material incorporated by reference in such Registration
Statement.
"Required Holders" shall mean Holders holding at the time
shares of Series B1 Preferred Stock, Series B2 Preferred Stock,
or Senior Preferred Stock, or the Convertible Notes, or
Conversion Shares into which the Series B1 Preferred Stock,
Series B2 Preferred Stock, or Senior Preferred Stock (including,
without limitation, Senior Preferred Stock issuable or issued
upon conversion of the Convertible Notes) has been converted,
representing at least 66.67% of the sum of (x) all then
outstanding Conversion Shares issued upon conversion of the
Series B1 Preferred Stock, Series B2 Preferred Stock or Senior
Preferred Stock (including, without limitation, Senior Preferred
Stock issuable upon conversion of the Convertible Notes), (y) all
shares of Common Stock issuable to the holders of then
outstanding Series B1 Preferred Stock, Series B2 Preferred Stock
or Senior Preferred Stock, and (z) all shares of Common Stock
issuable to the holders of Senior Preferred Stock issuable upon
conversion of the Convertible Notes.
"Restricted Security" shall mean any security unless or
until: (i) it has been effectively registered under the
Securities Act and disposed of in accordance with the
Registration Statement covering it; (ii) it is distributed to the
public pursuant to Rule 144 (or any similar provisions then in
force) under the Securities Act; or (iii) it has otherwise been
transferred and a new certificate or other evidence of ownership
for it not bearing a restrictive legend pursuant to the
Securities Act and not subject to any stop transfer order has
been delivered by or on behalf of the Company and no other
restriction on transfer exists.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall
be in effect from time to time.
"Senior Preferred Certificate of Designation" shall mean the
Certificate of Designation of the Senior Preferred Stock filed
with the Secretary of State of Delaware, as may from time to time
be amended.
"underwritten offering" shall mean a registration in which
securities of the Company are sold pursuant to a firm commitment
underwriting to an underwriter at a fixed price for reoffering or
pursuant to agency or best efforts arrangements with an
underwriter.
2. Prior Agreements. This Agreement hereby amends and
restates the terms and provisions of each of the 1994 Agreement
and the 1998 Agreement, which are superseded in their entirety by
the provisions hereof.
3. Required Registration. Subject to the provisions of
Section 9 hereof, if the Demand Holders make a written request
for a registration with the Commission under and in accordance
with the provisions of the Securities Act of all or part of their
Registrable Securities (hereinafter referred to as a "Demand
Registration"), the Company shall promptly notify all Holders of
Registrable Securities in writing of the receipt of such request
and each such Holder, may elect (by written notice sent to the
Company within 10 Business Days from the date of such Holder's
receipt of the aforementioned Company's notice) to have
Registrable Securities included in such registration thereof
pursuant to this Section 3. Thereupon the Company shall, as
expeditiously as is possible, use its best efforts to effect the
registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by
such Holders for sale, all to the extent required to permit the
disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so
registered. All requests made pursuant to this Paragraph shall
specify the number of Registrable Securities to be registered and
shall also specify the intended methods of disposition thereof;
provided, however, that if the Demand Holders of a majority of
the Registrable Securities held by the Required Holders
requesting such registration request an underwritten offering,
the method of disposition shall be such an underwritten offering.
4. Incidental Registration. If the Company at any time
proposes to file on its behalf and/or on behalf of any of its
security holders (the "demanding security holders"), a
Registration Statement under the Securities Act on any form
(other than a Demand Registration and other than on a
Registration Statement on Form S-4 or S-8 or any successor form
for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees
of the Company pursuant to any employee benefit plan,
respectively) for the general registration of securities, it
will give written notice thereof to all Holders, at least 30
days before the initial filing with the Commission of such
Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be
registered by the Company. The notice shall offer to include in
such filing the aggregate number of shares of Registrable
Securities as such holders thereof may request.
Each Holder desiring to have Registrable Securities
registered under this Section 4 shall advise the Company in
writing within 10 Business Days after the date of receipt of
such offer from the Company, setting forth the amount of such
Registrable Securities for which registration is requested. The
Company shall thereupon include in such filing the number of
shares of Registrable Securities for which registration is so
requested, subject to the next sentence, and shall use its best
efforts to effect registration under the Securities Act of such
shares. If the managing underwriter of a proposed underwritten
offering shall advise the Company in writing that, in its
opinion, the distribution of the Registrable Securities
requested to be included in the registration concurrently with
the securities being registered by the Company or such demanding
security holder would materially and adversely affect the
distribution of such securities by the Company or such demanding
security holder, then all selling security holders (including
the demanding security holder) shall reduce the amount of
securities each intended to distribute through such offering on
a pro rata basis. Except as otherwise provided in Section 7
hereof, all expenses of such registration shall be borne by the
Company.
This Section 4 shall not apply to a Qualified Public
Offering unless the Demand Holders request to register their
Registrable Securities, then all Holders shall be entitled to
register their Registrable Securities pursuant to this Section
4, subject to the penultimate sentence of the above paragraph
immediately preceding this paragraph. If a registration under
this Section 4 is an underwritten offering, all holders whose
Securities are included therein shall be obligated to sell their
securities on the same terms and conditions as apply to the
securities being issued and sold generally in such underwriting.
5. Holdback Agreements.
A. Restrictions on Public Sale by Holder of Registrable
Securities. Each Holder agrees, if requested by the managing
underwriters, not to effect any public sale or distribution of
securities of the Company of the same class as the securities
included in any Registration Statement with respect to the
Company's initial underwritten public offering of securities,
including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten offering), during the
ten-day period prior to, and, during the 120-day period beginning
on, the closing date of such underwritten offering made pursuant
to such Registration Statement, to the extent timely notified in
writing by the Company or the managing underwriters. The
foregoing provisions shall not apply to any Holder if such Holder
is prevented by applicable statute or regulation from entering
any such agreement; provided, however, that any such Holder shall
undertake, in its request to participate in any such underwritten
offering, not to effect any public sale or distribution of the
applicable class of Registrable Securities commencing on the date
of sale of such applicable class of Registrable Securities unless
it has provided 45 days' prior written notice of such sale or
distribution to the underwriter or underwriters.
B. Restrictions on Public Sale by the Company and Others.
The Company agrees:
(i) not to effect any public or private sale or
distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such
equity securities, including a sale pursuant to Regulation D
under the Securities Act, during the ten-day period prior
to, and during the 120-day period beginning on, the closing
date of the initial underwritten offering of the Company's
securities, without the consent of the managing underwriters
of such underwritten offering, to the extent timely notified
in writing by a holder of Registrable Securities or the
managing underwriters (except as part of such underwritten
offering or pursuant to registrations on Form S-4 or S-8 or
any successor form to such Forms); and
(ii) to cause each officer and director of the Company
who is a holder of its equity securities, or any securities
convertible into or exchangeable or exercisable for such
equity securities to agree not to effect any public sale or
distribution of any such securities during such period,
including a sale pursuant to Rule 144 under the Securities
Act (except as part of such underwritten offering, if
permitted, or with the consent of the managing underwriter
of such underwritten offering).
6. Registration Procedures. If the Company is required
by the provisions of Sections 3 or 4 hereof to use its best
efforts to effect the registration of any of its securities
under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such securities on a form for which
the Company then qualifies and which form shall be available for
the sale of the Registrable Securities in accordance with the
intended method or methods of distribution thereof, and use its
best efforts to cause such Registration Statement to become and
remain effective for a period of time required for the
disposition of such securities by the holders thereof, but not
to exceed 180 days; provided, however, that before filing a
Registration Statement or prospectus or any amendments or
supplements thereto, including documents incorporated by
reference after the initial filing of the Registration Statement,
the Company shall furnish to the holders of the Registrable
Securities covered by such Registration Statement and the
underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such
holders and underwriters;
(b) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective and to comply with
the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such Registration
Statement until the earlier of such time as all of such
securities have been disposed of in a public offering or the
expiration of 180 days;
(c) furnish to such selling security holders such number
of copies of a summary prospectus or other prospectus, including
a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents, as such selling
security holders may reasonably request;
(d) use its best efforts to register or qualify the
securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions within
the United States and Puerto Rico as each holder of such
securities shall request (provided, however, that the Company
shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not
then qualified or to file any general consent to service or
process), and do such other reasonable acts and things as may be
required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by
such Registration Statement;
(e) at the request of any Holder requesting registration
of Registrable Securities pursuant to Section 3, on the date
that such shares of Registrable Securities are delivered to the
underwriters for sale pursuant to such registration or, if such
Registrable Securities are not being sold through underwriters,
on the date that the Registration Statement with respect to such
shares of Registrable Securities becomes effective, (1) make
such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, in such
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering
matters; (2) furnish an opinion, dated such date, of the
independent counsel representing the Company for the purposes of
such registration, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through
underwriters, then to the Holders thereof making such request,
in customary form and covering matters of the type customarily
covered in such legal opinions; (3) furnish a comfort letter
dated such date, from the independent certified public
accountants of the Company, addressed to the underwriters, if
any, and if such Registrable Securities are not being sold
through underwriters, then to the Holders thereof making such
request and, if such accountants refuse to deliver such letter
to such Holders, then to the Company, in a customary form and
covering matters of the type customarily covered by such comfort
letters and as the underwriters or such Holders shall reasonably
request; (4) if an underwriting agreement is entered into, cause
the same to set forth in full the indemnification and
contribution provisions and procedures of Section 8 hereof, or
language at least as favorable to the Holders, with respect to
all parties to be indemnified pursuant to said Section; and (5)
deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable
Securities being sold and the managing underwriters, if any, to
evidence compliance with clause (1) of this Paragraph (e) and
with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. Such
opinion of counsel shall additionally cover such other legal
matters with respect to the registration in respect of which
such opinion is being given as such Holders of a majority of the
Registrable Securities being sold may reasonably request. Such
letter from independent certified public accountants shall
additionally cover such other financial matters (including
information as to the period ending not more than five Business
Days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as
the Holders of a majority of the Registrable Securities being so
registered may reasonably request;
(f) enter into customary agreements (including an
underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities; and
(g) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, but not later than 18 months after the effective
date of the Registration Statement, an earnings statement
covering the period of at least 12 months beginning with the
first full month after the effective date of such Registration
Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act.
It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Agreement in respect
of the securities which are to be registered at the request of
any holder of Registrable Securities that such holder shall
furnish to the Company such information regarding the securities
held by such holder and the intended method of disposition
thereof as the Company shall reasonably request and as shall be
required in connection with the action taken by the Company.
7. Expenses. All expenses (hereinafter referred to as
"Registration Expenses") incurred in complying with this
Agreement, including without limitation, all registration and
filing fees (including all expenses incident to filing with the
NASD), printing, messenger, telephone and delivery expenses,
securities acts liability insurance if the Company so desires or
if, the underwriters or selling holders of Registrable
Securities so require, fees and disbursements of underwriters,
except as set forth in subparagraph (b) of this Section, fees
and disbursements of counsel for the Company, the reasonable
fees and expenses of one counsel for the selling security
holders (selected by those holding a majority of the Registrable
Securities being registered), expenses of any special audits
incident to or required by any such registration and expenses of
complying with the securities or blue sky laws of any
jurisdiction pursuant to Section 6(d) shall be paid by the
Company, except that:
(a) all such expenses in connection with any amendment or
supplement to the Registration Statement or prospectus filed
more than 180 days after the effective date of such Registration
Statement because any holder of Registrable Securities has not
effected the disposition of the securities requested to be
registered shall be paid by such Holder of Registrable
Securities; and
(b) the Company shall not be liable for any fees,
discounts or commissions to any underwriter or any fees or
disbursements of counsel for any underwriter in respect of the
securities sold by such Holder of Registrable Securities.
8. Indemnification and Contribution.
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement,
the Company shall indemnify and hold harmless the Holder of such
Registrable Securities, such Holder's directors and officers,
and each other Person (including each underwriter) who
participated in the offering of such Registrable Securities and
each other Person, if any, who controls such Holder or such
participating Person within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or
several, to which such holder or any such director or officer or
participating Person or controlling Person may become subject
under the Securities Act or any other statute or at common law,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i)
any alleged untrue statement of any material fact contained, on
the effective date thereof, in any Registration Statement under
which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) any
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and shall reimburse such Holder or such director,
officer or participating Person or controlling Person for any
reasonable legal or any other expenses reasonably incurred by
such holder or such director, officer or participating Person or
controlling Person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any actual or alleged untrue
statement or actual or alleged omission made in such
Registration Statement, preliminary prospectus, prospectus or
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Holder
specifically for use therein or (in the case of any registration
pursuant to Section 3) so furnished for such purposes by any
underwriter. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of
such Holder or such director, officer or participating Person or
controlling Person, and shall survive the transfer of such
securities by such Holder.
(b) Each Holder, by acceptance hereof, agrees to indemnify
and hold harmless the Company, its directors and officers and
each other Person, if any, who controls the Company within the
meaning of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which the Company
or any such director or officer or any such Person may become
subject under the Securities Act or any other statute or at
common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon information in writing provided to the Company by
such Holder specifically for use in the following documents and
contained, on the effective date thereof, in any Registration
Statement under which securities were registered under the
Securities Act at the request of such Holder, any preliminary
prospectus or final prospectus contained therein, or any
amendment or supplement thereto. Notwithstanding the provisions
of this paragraph (b) or paragraph (c) below, no Holder of
Registrable Securities shall be required to indemnify any Person
pursuant to this Section 8 or to contribute pursuant to
paragraph (c) below in an amount in excess of the amount of the
aggregate net proceeds received by such Holder in connection
with any such registration under the Securities Act.
(b) If the indemnification provided for in this Section 8
from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which
resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
9. Certain Limitations on Registration Rights.
Notwithstanding the other provisions of
this Agreement:
(a) The provisions of Section 3 hereof shall not extend to
more than two Demand Registrations; provided, however, that if
the Company shall be eligible to file a Registration Statement on
Form S-3 (or other comparable short form) the number of Demand
Registrations shall extend to four registrations if on Form S-3
(or such other form), though in no event shall the Company be
required to file more than one registration on Form S-3 in any
calendar year.
(c) The Company shall not be obligated to register the
Registrable Securities of any Holder if, in the opinion of
counsel to the Company reasonably satisfactory to the Holder and
its counsel (or, if the Holder has engaged an investment banking
firm, to such investment banking firm and its counsel), the sale
or other disposition of such Holder's Registrable Securities, in
the manner proposed by such Holder (or by such investment
banking firm), may be effected without registering such
Registrable Securities under the Securities Act.
(c) The Company shall not be obligated to register the
Registrable Securities of any Holder pursuant to Section 3 if
the Company has had a Registration Statement, under which such
Holder had a right to have its Registrable Securities included
pursuant to Section 3 or 4, declared effective within 180 days
prior to the date of the request pursuant to Section 3.
(d) The Company shall have the right to delay the filing
or effectiveness of a Registration Statement required pursuant
to Section 3 hereof during one or more periods aggregating not
more than 90 days in any twelve-month period in the event that
(i) the Company would, in accordance with the advice of its
counsel, be required to disclose in the prospectus information
not otherwise then required by law to be publicly disclosed and
(ii) in the judgment of the Company's Board of Directors, there
is a reasonable likelihood that such disclosure, or any other
action to be taken in connection with the prospectus, would
materially and adversely affect any existing or prospective
material business situation, transaction or negotiation or
otherwise materially and adversely affect the Company.
10. Selection of Managing Underwriters. The managing
underwriter or underwriters for any underwritten offering of
Registrable Securities to be registered pursuant to Section 3
shall be selected by the Holders of a majority of the shares
held being so registered and shall be reasonably acceptable to
the Company.
11. Rule 144. The Company covenants that it shall file the
reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and it shall take such further action as
any holder of Registrable Securities may reasonably request, all
to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be
amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any
holder of Registrable Securities, the Company shall deliver to
such holder a written statement as to whether it has complied
with such information and requirements.
12. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the
Holders in this Agreement. Except with respect to the 1994
Agreement and the 1998 Agreement, the Company has not previously
entered into any agreement with respect to any of its securities
granting any registration rights to any Person.
(b) Remedies. Each Holder, in addition to being entitled
to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate. In any
action or proceeding brought to enforce any provision of this
Agreement or where any provision hereof is validly asserted as a
defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available
remedy.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departure
from the provisions hereof may not be given unless the Company
has obtained the written consent of the Required Holders. Any
amendment, modification, supplement or waiver agreed to by the
Required Holders shall be binding upon all Holders.
(d) Notice Generally. Any notice, demand, request,
consent, approval, declaration, delivery or other communication
hereunder to be made pursuant to the provisions of this
Agreement shall be sufficiently given or made if in writing and
either delivered in person with receipt acknowledged or sent by
registered or certified mail, return receipt requested, postage
prepaid, by overnight express mail by a nationally recognized
carrier, or by telecopy and confirmed by telecopy answerback,
addressed as follows:
(i) If to any Holder, at its last known address
appearing on the books of the Company maintained
for such purposes.
(ii) If to the Company, at
NewCheck Corporation
0000 Xxxxxxxxxx Xxx, Xxxxx 00
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given
as herein provided. The giving of any notice required hereunder
may be waived in writing by the party entitled to receive such
notice. Every notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder shall be
deemed to have been duly given or served on the date on which
personally delivered, with receipt acknowledged, telecopied and
confirmed by telecopy answerback, the next day if delivered by
overnight express carrier or three Business Days after the same
shall have been deposited in the United States mail.
(e) Benefit and Binding Effect. All of the terms and
provisions of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective
successors and assigns, including any permitted transferee of
their Registrable Securities (other than as part of a registered
offering under the Securities Act). References herein to any
Holder shall include Holder and any of its successors and
assigns.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law; Jurisdiction. This Agreement shall be
governed by, construed and enforced in accordance with the laws
of the State of New York without giving effect to the conflict
of laws provisions thereof. Each of the parties hereby submits
to personal jurisdiction and waives any objections as to venue
in the County of New York, State of New York. The parties hereto
waive all right to trial by jury in any action or proceeding to
enforce or defend any rights hereunder.
(h) Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of
this Agreement.
(i) Entire Agreement. This Agreement represents the
complete agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof
including, without limitation, the 1994 Agreement and the 1998
Agreement.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute but one and the same
instrument. This Agreement shall be binding upon the parties
hereto notwithstanding the absence of any execution and delivery
hereof by Xxxxx Xxxxx, who may subsequently be joined as a party
by execution and delivery hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NEWCHECK CORPORATION
By: s/Xxxxxx X. Xxxxxx, Xx.
------------------------
Xxxxxx X. Xxxxxx, Xx.
Chief Executive Officer
ELECTRONIC RETAILING SYSTEMS
INTERNATIONAL, INC.
By: s/Xxxxx X. Failing, Jr.
------------------------
Name: Xxxxx X. Failing, Jr.
Title: Vice Chairman and
Chief Executive Officer
CANAAN CAPITAL OFFSHORE LIMITED
PARTNERSHIP, C.V., a limited
partnership formed under the laws
of the Netherlands Antilles
By: Canaan Capital Management
L.P., General Partner
By: Canaan Capital Partners L.P.,
General Partner
By: s/Xxxxx Xxxx
------------------------
General Partner
CANAAN CAPITAL LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Canaan Capital Management
L.P., General Partner
By: Canaan Capital Partners L.P.,
General Partner
By: s/Xxxxx Xxxx
-------------------------
General Partner
GE CAPITAL EQUITY INVESTMENTS,
INC.
By: s/Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
PEC ISRAEL ECONOMIC CORPORATION
By: s/Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
DISCOUNT INVESTMENT CORPORATION,
LTD.
By: s/Dr. Yoram Turbowicz
s/Xxxxxx Xxxxx
---------------------------
Name: Dr. Yoram Turbowicz
Title: Chief Executive
Officer
Name: Xxxxxx Xxxxx
Title: Assistant to
President
FIRST COMMERCE CAPITAL, INC.,
d/b/a BANC ONE CAPITAL
By: s/Xxxx X. Xxxx
---------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
XXXXXXX NATIONAL LIFE INSURANCE
CO.,
by PPM AMERICA, INC. Attorney in
Fact
By: s/Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
s/Xxxxx X. Failing
-------------------------------
XXXXX X. FAILING
TRUST UNDER PARAGRAPH II OF ARTICLE
FIRST OF THE FAILING TRUST U/A/D
7/31/90 F/B/O XXXXX X. FAILING, III
By: s/Xxxxx X. Failing
-------------------------------
XXXXX X. FAILING
TRUST UNDER PARAGRAPH II OF ARTICLE
FIRST OF THE FAILING TRUST U/A/D
7/31/90 F/B/O LINDSAY FAILING
By: s/Xxxxx X. Failing
------------------------------
XXXXX X. FAILING
s/Xxxxx Xxxxxxxx
----------------------------------
XXXXX XXXXXXXX
s/Xxxxxxx X. Xxxxxxx
----------------------------------
XXXXXXX X. XXXXXXX
s/Xxxxxxx Xxxxxxxxxx
----------------------------------
XXXXXXX XXXXXXXXXX, ON BEHALF OF
XXXXXX X.X. XXXXXXX & J. XXXXXXXXXXX
XXXXX TTEE CREDIT RESEARCH AND
TRADING LLC PFT SHR U/A DTD 1/1/96
FBO XXXXXXX XXXXXXXXXX
s/Xxxxx Xxxxx
----------------------------------
XXXXX XXXXX
s/Xxxxx X. Failing
----------------------------------
XXXXX X. FAILING
s/Xxxxxx XxXxxx
----------------------------------
XXXXXX XXXXXX
s/Xxxxxxx Xxx
----------------------------------
XXXXXXX XXX
s/Xxxx Xxxxxxxxx
----------------------------------
XXXX XXXXXXXXX
s/Xxxxx Xxxxxxx
----------------------------------
XXXXX XXXXXXX
XXXXX STREET ASSOCIATES, LLC
By: s/Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Member/Manager
AG CHECKOUT LLC
By: s/Xxxxxx Brain
------------------------------
Name: Xxxxxx Brain
Title: Vice President
XXXXXXXX PARTNERS, LLC
By s/Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
s/Xxxxxx X. Xxxxxxx
----------------------------------
XXXXXX X. XXXXXXX
XXXXX CORPORATION
By s/Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
BNY CAPITAL MARKETS, INC.
By s/Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
s/Xxxxxxx Xxxxxxxxxx
---------------------------------
XXXXXXX XXXXXXXXXX
