Exhibit 10.33
WARRANT ASSIGNMENT AGREEMENT
AGREEMENT dated as of this 1st day of August, 2000, between
Electronic Retailing Systems International, Inc., a Delaware
corporation (the "Company"), and Xxxxxx Xxxxx, residing at 000
Xxxxxx Xxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxxx 00000 (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company holds a warrant certificate dated as of
February 11, 2000 (the "NewCheck Warrant Certificate") evidencing
contingent warrants (the "NewCheck Warrants") exercisable with
respect to shares (the "NewCheck Warrant Shares") of common stock,
$.0001 par value (the "NewCheck Common Stock"), of NewCheck
Corporation d/b/a Productivity Solutions, Inc. ("NewCheck"),
representing up to 15 percent of the NewCheck Common Stock
(calculated as set forth in the NewCheck Warrant Certificate),
together with related rights under an Amended and Restated
Registration Rights Agreement dated as of February 11, 2000 (the
"Registration Rights Agreement") extended by NewCheck; and
WHEREAS, the Company has determined that it is in the best
interests of the Company and its stockholders to assure that the
Company shall have the continued dedication of the Executive and,
accordingly, the Company desires to assign to the Executive
NewCheck Warrants (the "Executive Warrants") exercisable with
respect to the percentage of the NewCheck Common Stock hereinafter
identified, together with the rights, benefits and privileges of
the Company under the Registration Rights Agreement as they relate
to the Executive Warrant Shares;
NOW THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein, the parties
hereto hereby agree as follows:
1. Assignment of NewCheck Warrants. (a) In consideration
of $10.00 and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and subject to
the terms and conditions of this Agreement, the Company hereby
assigns, transfers, and conveys to the Executive a portion of the
NewCheck Warrants entitling the holder, in the event (within the
period specified in the NewCheck Warrant Certificate) NewCheck's
Equity Value (as defined therein) equals or exceeds the amount
thereof set forth below, to purchase a number of fully-paid and
non-assessable shares (the "Executive Warrant Shares") of NewCheck
Common Stock (together with the rights, benefits and privileges of
the Company under the Registration Rights Agreement as they relate
to the Executive Warrants and the Executive Warrant Shares) so as
to represent the percentage set forth below opposite such Equity
Value of the sum of those shares identified under clauses (x)
through (y), inclusive, under Section 1 of the NewCheck Warrant
Certificate:
Equity Value Percentage
$150,000,000 .34%
200,000,000 .67
250,000,000 1.00
; such purchase in all respects to be subject to the additional
terms and conditions contained in the NewCheck Warrant
Certificate.
(b) As promptly as practicable subsequent to the date
hereof, the Company shall submit the NewCheck Warrant Certificate
to NewCheck in exchange for a new warrant certificate evidencing
the Executive Warrants, registered in the name of the Executive,
and another warrant certificate, registered in the name of the
Company, representing the remainder of the NewCheck Warrants; it
being acknowledged and agreed that all rights of the Company set
forth in the penultimate paragraph of Section 1 of the NewCheck
Warrant Certificate, including, without limitation, those
regarding selection of a Date of Determination and calculation of
Equity Value, shall continue to reside in the Company
notwithstanding any other provision in this Agreement. The parties
hereby agree that in all matters of interpretation regarding
issuance of the warrant certificate in the name of the Executive
the determinations of the Company shall be conclusive.
2. Re-Assignment to the Company. (a) In the event the
Executive's employment as an employee of the Company, or any
parent or subsidiary corporations (within the respective meanings
of Section 424(e) and 424(f) of the Internal Revenue Code of 1986,
as amended, and referred to herein as "Parent" and "Subsidiary",
respectively) is terminated prior to the time that the Executive
Warrants have been exercised in full, the Executive shall
forthwith assign to the Company all right, title and interest in
and to the Executive Warrants not theretofore exercised; provided,
however, that the Executive Warrants may continue to be exercised
by the Executive solely in the following circumstances:
(i) Except as otherwise provided in clause (iv)
immediately succeeding, if the Executive's employment is
terminated by reason of disability or retirement under any
retirement plan maintained by the Company or any Parent or
Subsidiary, the Executive Warrants may be exercised by the
Executive within 30 days after such termination, but only as
to any Executive Warrants exercisable on the date the
Executive's employment so terminates, and the Executive
shall, at the end of such 30-day period, forthwith assign to
the Company all right, title and interest in and to the
Executive Warrants not theretofore exercised;
(ii) In the event of the death of the Executive during
the 30-day period after termination of employment covered by
(i) above, the person or persons to whom his rights are
transferred by will or the laws of descent and distribution
shall have a period of one year from the date of his death to
exercise any Executive Warrants which were exercisable by the
Executive at the time of his death, and such transferee
shall, at the end of such one-year period forthwith assign to
the Company all right, title and interest in and to the
Executive Warrants not theretofore exercised;
(iii) In the event of the death of the Executive during
the period of the Executive's employment, the person or
persons to whom the Executive's rights are transferred by
will or the laws of descent and distribution shall have a
period of one year from the date of the Executive's death to
exercise any Executive Warrants which were exercisable by the
Executive at the time of his death, and such transferee
shall, at the end of such one-year period forthwith assign to
the Company all right title and interest in and to the
Executive Warrants not theretofore exercised; or
(iv) If the Executive's employment is terminated (a)
by action of his employer for reasons other than Cause (as
hereinafter defined), or (b) by the Executive other than at
such time as the Company shall have grounds to terminate the
Executive's employment for Cause, the Executive Warrants
(including such Executive Warrants as may become subject to
exercise during the period ending on the second anniversary
of the termination of the Executive's employment) may be
exercised by the Executive within two years after the
termination of the Executive's employment, and the Executive
shall, at the end of such two-year period, forthwith assign
to the Company all right, title and interest in and to the
Executive Warrants and not theretofore exercised.
Notwithstanding anything to the contrary herein, in no event may
the Executive Warrants be exercised after the expiration thereof
as set forth in the NewCheck Warrant Certificate.
(b) For purposes hereof:
(i) The term "Cause" shall mean:
(A) The failure of the Executive to perform
substantially the Executive's duties with the Company
or any of its Affiliates (as hereinafter defined)
(other than any such failure resulting from incapacity
due to physical or mental illness), which failure
remains uncured for a period of 30 days after a written
notice for substantial performance is delivered to the
Executive by the Board of Directors of the Company
which identifies the manner in which the Board of
Directors believes that the Executive has not
substantially performed the Executive's duties, or
(B) Engaging by the Executive in illegal conduct
or gross misconduct which is materially and
demonstrably injurious to the Company; or
(C) Conviction of a crime (other than misdemeanor
traffic offenses) or commission of an act of moral
turpitude; and
(ii) The term "Affiliate" shall mean any Person
controlling, controlled by or under common control with
the subject referenced; and
(iii) The term "Person" shall mean any individual,
entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934).
(c) In furtherance of the provisions of this Section 2, the
Executive hereby executes and delivers to the Company a form of
warrant assignment with respect to the assignment to the Company
of all right, title and interest of the Executive in and to the
Executive Warrants, and hereby authorizes the Company to complete
and deliver such assignment in such manner as shall be appropriate
to effectuate the purposes of this Section 2. The parties further
agree that, as a condition to any exercise by any permitted
transferee of any Executive Warrants, such transferee shall
execute and deliver to the Company such instruments, in form and
substance prescribed by the Company, in order to further the
purposes and intent of this Section 2, accompanied by such
transferee's agreement in writing that the Company shall be
authorized to complete and deliver any such instruments in such
manner as shall be appropriate to effectuate the purposes of this
Section 2.
3. Non-Transferability. The Executive Warrants are
personal to the Executive and during the Executive's lifetime may
be exercised only by the Executive, except as otherwise agreed to
by the Company. The Executive Warrants shall not be transferable
by the Executive other than by will or the laws of descent and
distribution.
4. No Commitment. Neither this Agreement nor the Executive
Warrants confer on the Executive any right to continue in the
service of the Company or its Affiliates or interfere in any way
with the right of the Company to determine the terms of the
Executive's service.
5. Representations and Warranties. The Executive
represents, warrants, covenants, and agrees with the Company as
follows:
(a) The Executive Warrants are being received for the
Executive's own account without the participation of any other
person, with the intent of holding the Warrants and the Executive
Warrant Shares for investment and without the intent of
participating, directly or indirectly, in a distribution of such
Executive Warrants or the Executive Warrant Shares and not with a
view to, or for resale in connection with, any distribution of the
Executive Warrants or Executive Warrant Shares or any portion
thereof;
(b) The Executive is not acquiring the Executive Warrants or
the Executive Warrant Shares based upon any representation, oral
or written, by any person with respect to the future value of, or
income from, such securities, but rather upon an independent
examination and judgment as to the prospects of NewCheck;
(c) The Executive is familiar with the business and affairs
of NewCheck, and realizes that the receipt of the Executive
Warrants and the Executive Warrant Shares is a speculative
investment and that any possible profit therefrom is uncertain;
(d) The Executive has had the opportunity to ask questions
of and receive answers from NewCheck and any person acting on its
behalf and to obtain all information available with respect to
NewCheck and its affairs, and has received all information and
data with respect to NewCheck that the Executive has requested and
which the Executive has deemed relevant in connection with the
Executive's receipt of the Executive Warrants and the Executive
Warrant Shares;
(e) The Executive is able to bear the economic risk of the
investment, including the risk of a complete loss of the
Executive's investment, and the Executive acknowledges that the
Executive must continue to bear the economic risk of the
investment in the Executive Warrants and the Executive Warrant
Shares for an indefinite period;
(f) The Executive understands and agrees that the Executive
Warrants and the Executive Warrant Shares are assigned to the
Executive without registration under any state or federal law
relating to the registration of securities for sale, and will be
assigned in reliance on exemptions from registration under
appropriate state and federal laws;
(g) The Executive Warrants and the Executive Warrant Shares
will not be offered for sale, sold or transferred by the Executive
other than pursuant to:
(1) an effective registration under applicable state
securities laws or in a transaction which is otherwise in
compliance with those laws;
(2) an effective registration under the Securities Act
of 1933 (the "1933 Act"), or a transaction otherwise in compliance
with the 1933 Act; and
(3) evidence satisfactory to NewCheck of compliance
with the applicable securities laws.
(h) NewCheck will be under no obligation to register the
Executive Warrants or the Executive Warrant Shares or to comply
with any exemption available for sale of the Executive Warrants
and the Executive Warrant Shares by the Executive without
registration, and NewCheck is under no obligation to act in any
manner so as to make Rule 144 promulgated under the 1933 Act
available with respect to sale of the Executive Warrants or the
Executive Warrant Shares by the Executive, in each case except as
set forth in the Registration Rights Agreement;
(i) A legend indicating that the Executive Warrants and the
Executive Warrant Shares have not been registered under the
applicable securities laws and referring to any applicable
restrictions on transferability and sale of the Executive Warrants
and the Executive Warrant Shares may be placed on the certificate
or certificates delivered to the Executive in evidence thereof and
any transfer agent of NewCheck may be instructed to require
compliance therewith; and
(j) The assignment of the Executive Warrants shall be
subject to such additional representations and agreements from the
Executive to NewCheck and/or the Company so as to ensure that such
assignment is in all respects in compliance with any applicable
requirements of federal and state securities laws.
6. Registration Rights Agreement. The parties shall take
all such further action, and deliver all such additional notices
and agreements, as shall be necessary or appropriate, as
determined by the Company, to effectuate the transfer to the
Executive of the Company's rights under the Registration Rights
Agreement insofar as pertaining to the Executive Warrants and the
Executive Warrant Shares, subject to the obligations of the
Company thereunder.
7. Securityholders Agreement. The parties shall take all
such further action, and deliver all such additional notices and
agreements, as shall be necessary or appropriate, as determined by
and at the election of the Company, to join the Executive, as the
transferee of the Company, as a party to the Amended and Restated
Securityholders Agreement dated February 11, 2000 (the
"Securityholders Agreement") of NewCheck, insofar as pertaining to
the Executive Warrants and the Executive Warrant Shares, subject
to the obligations of the Company thereunder.
8. Superseding Agreements. This Agreement and the terms
and conditions herein set forth are subject in all respects to the
terms and conditions of the NewCheck Warrant Certificate, the
Registration Rights Agreement and the Securityholders Agreement,
which shall be controlling.
9. Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, address as follows:
If to the Executive:
000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
If to the Company:
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Krugman & Kailes LLP
Park 00 Xxxx - Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
address.
10. Further Action; Power of Attorney. Each of the parties
hereto shall use such party's best efforts to take such actions as
may be necessary or reasonably requested by the other parties
hereto to carry out and consummate the transactions contemplated
by this Agreement. The Executive hereby constitutes and appoints
the Company, its successors and assigns, the true and lawful
attorney or attorneys of the Executive, with full power of
substitution, for it and in its name and stead or otherwise to
perform and comply with the provisions of this Agreement, and
generally to do any and all such acts and things in relation
thereto as the Company, its successors or assigns, shall deem
advisable. The Executive declares that the appointment hereby made
and the power hereby granted are coupled with an interest and
shall be irrevocable by the Executive.
11. Entire Agreement. This Agreement shall contain the
entire agreement of the parties with respect to the transactions
contemplated hereby.
12. Governing Law; Captions; Amendments. This Agreement
shall be governed by and construed in accordance with the laws of
the State of Delaware, without reference to principles of conflict
of laws. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
13. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
14. No Waiver. The Executive's or the Company's failure to
insist upon strict compliance with any provision of this Agreement
the failure to assert any right the Executive or the Company may
have hereunder, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this
Agreement.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from this
Board of Directors, the Company has caused these presents to be
executed in its name on its behalf, all as of the day and year
first above written.
Executive:
s/Xxxxxx Xxxxx
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Xxxxxx Xxxxx
ELECTRONIC RETAILING SYSTEMS
INTERNATIONAL, INC.
By s/Xxxxxxx Xxxxxx
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