EXHIBIT 4.1
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT dated as of March 30, 2000 among Vertex
Interactive, Inc., a New Jersey corporation (the "Company"), the clients of
Xxxxxxx Capital Group LLC listed on the signature pages hereto ("Xxxxxxx
Purchasers"), Federal Partners, L.P., a New York limited partnership
("Federal"), Sofaer Funds SCI Global Hedge Fund, MeesPierson (Cayman) Limited,
trustee ("Sofaer"), RIT Capital Partners plc, a corporation incorporated under
the laws of the United Kingdom ("Rothschild"), Xx. Xxxxxx Xxxxxxx ("Xx.
Xxxxxxx"), Xx. Xxxxx Xxxxxx ("Xx. Xxxxxx"), P.A.W. Partners, L.P., a Delaware
limited partnership ("Partners"), P.A.W. Offshore Fund, Ltd., a Bahamas offshore
corporation ("Offshore"), and Xx. Xxxxxxx Xxxxxxxx ("Xx. Xxxxxxxx," and together
with the Xxxxxxx Purchasers, Federal, Sofaer, Rothschild, Xx. Xxxxxxx, Xx.
Xxxxxx, Partners, and Offshore, the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Company and Xxxxxxx Purchasers have entered into
a Subscription Agreement, dated as of the date hereof (the "Xxxxxxx Subscription
Agreement"), pursuant to which Xxxxxxx Purchasers purchased an aggregate of
1,250,000 shares (the "Xxxxxxx Registrable Stock") of common stock, par value
$.005 per share, of the Company ("VTX Common Stock");
WHEREAS, the Company and Federal have entered into a
Subscription Agreement, dated as of the date hereof (the "Federal Subscription
Agreement"), pursuant to which Federal purchased 625,000 shares of VTX Common
Stock (the "Federal Registrable Stock");
WHEREAS, the Company and Sofaer have entered into a
Subscription Agreement, dated as of the date hereof (the "Sofaer Subscription
Agreement), pursuant to which Sofaer purchased 312,500 shares of VTX Common
Stock (the "Sofaer Registrable Stock);
WHEREAS, the Company and Rothschild have entered into a
Subscription Agreement, dated as of the date hereof (the "Rothschild
Subscription Agreement), pursuant to which Rothschild purchased 312,500 shares
of VTX Common Stock (the "Rothschild Registrable Stock);
WHEREAS, the Company and Xx. Xxxxxxx have entered into a
Subscription Agreement, dated as of the date hereof (the "Xxxxxxx Subscription
Agreement"), pursuant to which Xx. Xxxxxxx purchased 62,500 shares of VTX Common
Stock (the "Xxxxxxx Registrable Stock);
WHEREAS, the Company and Xx. Xxxxxx have entered into a
Subscription Agreement, dated as of the date hereof (the "Xxxxxx Subscription
Agreement"), pursuant to
which Xx. Xxxxxx purchased 200,000 shares of VTX Common Stock (the "Xxxxxx
Registrable Stock);
WHEREAS, the Company and Partners have entered into a
Subscription Agreement, dated as of the date hereof (the "Partners Subscription
Agreement"), pursuant to which Partners purchased 62,500 shares of VTX Common
Stock (the "Partners Registrable Stock");
WHEREAS, the Company and Offshore have entered into a
Subscription Agreement, dated as of the date hereof (the "Offshore Subscription
Agreement"), pursuant to which Offshore purchased 62,500 shares of VTX Common
Stock (the "Offshore Registrable Stock");
WHEREAS, the Company and Xx. Xxxxxxxx have entered into a
Subscription Agreement, dated as of the date hereof (the "Xxxxxxxx Subscription
Agreement," and together with the Xxxxxxx Subscription Agreement, the Federal
Subscription Agreement, the Sofaer Subscription Agreement, the Rothschild
Subscription Agreement, the Xxxxxxx Subscription Agreement, the Xxxxxx
Subscription Agreement, the Partners Subscription Agreement, and the Offshore
Subscription Agreement, the "Subscription Agreements"), pursuant to which Xx.
Xxxxxxxx purchased 62,500 shares of VTX Common Stock (the "Xxxxxxxx Registrable
Stock," and together with the Xxxxxxx Registrable Stock, the Federal Registrable
Stock, the Sofaer Registrable Stock, the Rothschild Registrable Stock, the
Xxxxxxx Registrable Stock, the Xxxxxx Registrable Stock, the Partners
Registrable Stock, and the Offshore Registrable Stock, the "Registrable Stock");
NOW, THEREFORE, in consideration of the respective covenants
and conditions of the parties set forth herein and in the Subscription
Agreements, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Registration of Registrable Stock.
(a) Filing of Registration Statement. The Company shall, as
soon as practicable following the date hereof but in no event later than 180
days after the date hereof, prepare and file a registration statement on Form
S-3 (the "Registration Statement") with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the "Securities Act") covering
the offering and sale of the Registrable Stock by the Shareholders in privately
negotiated transactions, "brokers' transactions" or in transactions directly
with a "market maker," as such terms are defined in paragraphs (f) and (g) of
Rule 144 under the Securities Act ("Brokers' Transactions").
(b) Effectiveness; Amendments. The Company will use its
reasonable best efforts to cause to be declared effective as soon as possible
after filing and, except as set forth below, to remain effective under the
Securities Act, the Registration Statement and will prepare and file with the
SEC any amendments or post-effective amendments as may be necessary to keep the
Registration Statement effective under the Securities Act. The Company will
promptly
2
notify the Shareholders in writing of the date on which the Registration
Statement is declared effective. Notwithstanding the foregoing, (i) the Company
shall not be required to keep the Registration Statement effective for purposes
of the sale of Registrable Stock thereunder at any time after the earlier of the
date (A) on which all shares of Registrable Stock have been sold or are no
longer outstanding, and (B) which is two years (plus any time for delays arising
from events described in clause (ii) below or Section 3(i) ) following the
acquisition from the Company of the Registrable Stock, or such earlier date as
of which the Shareholders shall be able to make use of the safe-harbor
provisions of Rule 144(k) under the Act (or any successor rule) with respect to
sales of Registrable Stock, and (ii) the Company shall not be obligated to keep
the Registration Statement or the prospectus included therein (the "Prospectus")
current during any period (A) of up to 60 days per calendar year if the
Company's chief executive officer advises the Shareholders that he has
determined in good faith that valid business reasons concerning a potential
corporate transaction make doing so inadvisable, or (B) when financial
statements do not satisfy the requirements of the last sentence of paragraph (b)
of Rule 3-12 of Regulation S-X (or any successor rule) to the extent, and only
to the extent, that the SEC interprets such sentence as being applicable to the
continued effectiveness of the Registration Statement.
(c) Copies of Documents. During the period that the Company
has agreed to use its reasonable best efforts to cause the Registration
Statement to remain effective (the "Effectiveness Period"), the Company shall
furnish to each Shareholder such number of copies of the Registration Statement,
the Prospectus and any amendments and supplements thereto and any documents
incorporated by reference in the Registration Statement as such Shareholder
shall reasonably request.
(d) Blue Sky Compliance. The Company shall register or qualify
or cooperate with the Shareholders in connection with the notification,
coordination, registration or qualification (or obtain exemption from such
registration or qualification) of the Registrable Stock under such other
securities or blue sky laws of such jurisdictions in the United States as the
Shareholders reasonably shall request and do any and all other acts and things
which may be reasonably necessary to enable the Shareholders to consummate the
disposition of the Registrable Stock by them under the Registration Statement in
such jurisdictions during the Effectiveness Period; provided, however, that in
no event shall the Company be required to qualify to do business as a foreign
corporation in any jurisdiction where it is not so qualified, to subject itself
to taxation in any jurisdiction where it has not theretofore done so or to take
any action which would subject it to general service of process in any such
jurisdiction where it is not then so subject.
(e) Notification. During the Effectiveness Period, the Company
shall notify the Shareholders promptly, and (if requested by any Shareholder)
confirm such notice in writing, (i) of any request by the SEC or any other
regulatory authority for amendments or supplements to the Registration Statement
or the Prospectus or for additional information relating thereto, (ii) of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iii) of the receipt by the Company of any notification or stop order with
respect to the suspension of the registration, qualification or exemption from
registration or qualification of any of the shares of Registrable Stock covered
by the Registration Statement for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (iv) of the happening of any
event which
3
makes any statement made in such Registration Statement or in the Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in
such Registration Statement or Prospectus so that such documents will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(f) Supplements and Post-Effective Amendments. Subject to the
provisions of clause (ii) of the third sentence of Section 1(b) above, during
the Effectiveness Period, upon the occurrence of any event contemplated by
clause (i) or (iv) of paragraph (e) above, the Company will prepare a supplement
or post-effective amendment to the Registration Statement or a supplement to the
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Stock being sold thereunder, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) Listing. The Company shall cause the Registrable Stock
covered by the Registration Statement to be listed on each securities exchange
or securities quotation system, if any, on which similar securities issued by
the Company are then listed.
(h) Correspondence with the SEC. The Company shall, upon
request from any Shareholder, deliver promptly to such Shareholder copies of all
correspondence between the SEC and the Company, its counsel or auditors.
(i) Stock Certificates. The Company will cooperate with the
Shareholders to facilitate the timely preparation and delivery of certificates
representing Registrable Stock sold under the Registration Statement, which
certificates shall not have any restrictive legends.
2. Piggyback Registration. If at any time prior to the second
anniversary of the date hereof the Company proposes to file a registration
statement under the Securities Act with respect to an offering of VTX Common
Stock (except on Form S-4 or Form S-8 or any successor forms thereto), for its
own account, then the Company shall give written notice of such proposed filing
to the holders of Registrable Stock as far in advance of the anticipated filing
date as is practicable (the "Piggyback Notice"). The Piggyback Notice shall
offer such holders the opportunity to register such amount of Registrable Stock
as each such holder may request (a "Piggyback Registration"); subject in all
events to the agreement of the underwriter or underwriters of the offering
contemplated by such registration statement that such shares of Registrable
Stock can be included in such registration statement without adversely affecting
such offering. Any reduction in the number of securities to be so offered shall
be (i) first, pro-rata among all security holders who are exercising "piggyback"
registration rights, based on the number of registrable securities originally
proposed to be sold by each of them, and (ii) second, pro-rata among all
security holders who are exercising "demand" registration rights pursuant to a
registration rights agreement with the Company, based on the number of
registrable securities originally proposed to be sold by each of them.
4
3. Obligations of Shareholders. Following the filing of the
Registration Statement and during any period that the Registration Statement is
effective, each Shareholder shall:
(a) not effect any stabilization transactions or engage in any
stabilization activity in connection with the Company common shares in
contravention of Regulation M under the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) furnish each broker through whom any Shareholder offers
Registrable Stock such number of copies of the Prospectus as the broker may
require and otherwise comply with prospectus delivery requirements under the
Securities Act;
(c) Intentionally omitted;
(d) not (and shall not permit any Affiliated Purchaser (as
defined in Rule 10b-6 under the Exchange Act) to) bid for or purchase for any
account in which any Shareholder has a beneficial interest, or attempt to induce
any other person to purchase, any Company common shares in contravention of
Regulation M under the Exchange Act;
(e) Intentionally omitted;
(f) cooperate with the Company as the Company fulfills its
obligations under Section 1(d) hereof;
(g) furnish such information concerning such Shareholder as
the Company may from time to time reasonably request;
(h) sell Registrable Stock only in privately negotiated
transactions or Brokers' Transactions; and
(i) not sell under the Registration Statement during any
period after the Company has provided notice to such Shareholder pursuant to
Section 1(e)(iv) above and until the Company provides to such Shareholder notice
that the Registration Statement no longer fails to state a material fact
required to be stated therein, misstates a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
made not misleading.
4. Expenses. The Company shall be responsible for the payment
of (x) all registration and filing fees relating to registration of the offering
by the Shareholders of the Registrable Stock, including, without limitation,
registration and filing fees (A) with respect to filings required to be made
with the SEC or the NASD and (B) with respect to registrations and filings made
under state securities or blue sky laws and (y) any expenses incurred by the
Company in connection with the preparation of the Registration Statement and the
Prospectus. The Shareholders shall be responsible for the payment of fees and
disbursements of counsel to the Shareholders in connection with the preparation
of the Registration Statement and the Prospectus and fees paid to brokers in
connection with the sale of any of the Registrable Stock.
5
5. Indemnification.
(a) Indemnity by the Company. The Company shall (i) indemnify
and hold harmless each Shareholder and each person who controls such
Shareholder, within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities ("Losses"), to which each such
indemnified party may become subject, under the Securities Act or otherwise,
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or Prospectus, as amended or
supplemented if the Company has furnished any supplements or amendments thereto
(if used during the period the Company is required to keep the Registration
Statement and Prospectus current), or any document filed under a state
securities or blue sky law (collectively, "Registration Documents") or insofar
as any Losses (or actions in respect thereof) arise out of or are based upon the
omission or alleged omission to state in any Registration Document a material
fact required to be stated therein or necessary to make the statements made
therein (in the case of a prospectus, in the light of the circumstances under
which they were made), not misleading, and (ii) reimburse each indemnified party
for all legal or other expenses reasonably incurred by it in connection with
investigating or defending any such Losses or actions, including any amounts
paid in settlement of any litigation, commenced or threatened, if such
settlement is effected with the prior written consent of the Company; provided,
however, that the Company shall not be liable for any Losses arising out of or
based upon any untrue statement or omission made in any Registration Document in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Shareholder expressly for use in the preparation
of the Registration Document; and provided, further, that the Company shall not
be liable to a particular indemnified party under the indemnity agreement in
this Section 5(a) with respect to the Prospectus, as amended or supplemented, to
the extent that the Loss arises from the sale of any shares of Registrable Stock
by such indemnified party to the person asserting Loss and to which there was
not sent or given, within the time required by the Securities Act, a copy of the
Prospectus as then amended or supplemented, if the Company has previously
furnished copies thereof to such indemnified party and such Prospectus as then
amended or supplemented has corrected the misstatement or omission at issue.
(b) Indemnity by Shareholders. Each Shareholder shall,
severally and not jointly, (i) indemnify and hold harmless the Company, any
officer, director, employee or agent of the Company, and each other person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act against any Losses to which each such indemnified party may become subject
under the Securities Act or otherwise, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Document, or
arise out of or are based upon the omission or alleged omission to state in any
Registration Document a material fact required to be stated therein or necessary
to make the statements made therein (in the case of a prospectus, in the light
of the circumstances under which they were made,) not misleading, and (ii)
reimburse each indemnified party for all legal or other expenses reasonably
incurred by it in connection with investigating or defending any such Losses or
action, including any amounts paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the prior written consent of
such Shareholder; provided, however, that such indemnification or
6
reimbursement shall be payable only if, and to the extent that, any Losses arise
out of or are based upon an untrue statement or omission made in any
Registration Document in reliance upon and in conformity with written
information furnished to the Company by such Shareholder expressly for use in
the preparation thereof.
(c) Procedure for Indemnification. Promptly after receipt by
an indemnified party, under Section 5(a) or 5(b), of notice of the commencement
of any action, the indemnified party shall notify the indemnifying party in
writing of the commencement thereof, if a claim in respect thereof is to be made
against an indemnifying party under any of these Sections; but the omission of
such notice shall not relieve the indemnifying party from liability which it may
have to the indemnified party under this Section 5, except to the extent that
the indemnifying party is actually prejudiced in any material respect by such
failure to give notice, and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under this
Section 5. In case any action is brought against the indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and to the extent that
it chooses, to assume the defense thereof with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the
indemnified party that it so chooses, the indemnifying party shall not be liable
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof; provided however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the claim within 20 days after receiving notice from the indemnified party that
the indemnified party believes it has failed to do so, or (ii) if the
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have concluded that
there are legal defenses available to the indemnified party which are not
available to the indemnifying party, or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, the indemnified party shall have the right to assume or
continue its own defense as set forth above. In no event shall the indemnifying
party be responsible for more than one firm of counsel for all indemnified
parties.
(d) Non-Exclusive Indemnity. Any indemnity agreements
contained herein shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract
and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party.
(e) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission), or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, in such proportion as is appropriate to
reflect not only the relative fault of the indemnifying party and the
7
indemnified party, but also the relative benefits received by the indemnifying
party on the one hand (taking into consideration the fact that the provision of
the registration rights hereunder served as an inducement to the Shareholders to
enter into the Subscription Agreements) and the indemnified party on the other,
as well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
6. Miscellaneous.
(a) Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York without giving
effect to the choice of law principles thereof.
(b) Entire Agreement; Amendment; Waiver. This Agreement: (i)
contains the entire agreement among the parties hereto with respect to the
subject matter hereof, (ii) supersedes all prior written agreements and
negotiations and oral understandings, if any, with respect thereto, and (iii)
may not be amended or supplemented except by an instrument or counterparts
thereof in writing signed by the Company and each of the Shareholders. No waiver
of any term or provision of this Agreement shall be effective unless in writing
signed by the party to be charged. The waiver by any party of a breach of any
term or provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
(c) Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns; provided, however, that no party hereto
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of the other parties
hereto.
(d) Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction.
(e) Notices. All notices, requests, consents and other
communications to any party hereunder shall be in writing and shall be given
either by personal service, certified mail, return receipt requested, overnight
courier or telecopy, addressed as follows:
if to the Company, to:
Vertex Interactive, Inc.
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx X.X. Xxxx
Facsimile No.: 000-000-0000
with a copy to:
8
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. X'Xxxxxx, Esq.
Facsimile No.: 000-000-0000
and to:
Law Offices of Xxxxxxx Xxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
if to any Xxxxxxx Purchaser, to:
Xxxxxxx Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: 617-227-4420
if to Federal, to:
Federal Partners, L.P.
x/x Xxx Xxxxx Xxxxxxx, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Facsimile No.: 000-000-0000
with a copy to:
Winthrop, Stimson, Xxxxxx & Xxxxxxx
0 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Facsimile No.: 000-000-0000
9
if to Sofaer, to:
MeesPierson (Cayman) Limited as trustee of
Sofaer Funds SCI Global Hedge Fund
P.O. Box 2003 GT
Grand Pavillion Commercial Centre
Bougainvillea Way
000 Xxxx Xxx Xxxx
Xxxxx Xxxxxx
Facsimile No.: 000 0000000
Attn: Xxxxx Xxxxxxxx
with a copy to:
Sofaer Capital Inc.
X/x Xxxxxx Xxxxxxxxxxxxxx Xxxxxxx
00/X Xxxxxxxxxxxxx Building
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No.: 852 25302913
Attn: Xxxxxx Xxxxx
if to Rothschild, to:
RIT Capital Partners plc
Xxxxxxx House
00 Xx. Xxxxx'x Xxxxx
Xxxxxx XX0X0XX
Facsimile No.: 44 171 493 5765
Attn: Xxxxxx Xxxxx
with a copy to:
Sofaer Capital Inc.
X/x Xxxxxx Xxxxxxxxxxxxxx Xxxxxxx
00/X Xxxxxxxxxxxxx Xxxxxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No.: 852 2530 2913
Attn: Xxxxxx Xxxxx
if to Xx. Xxxxxxx, to:
10
Xx. Xxxxxx Xxxxxxx
c/x Xxxxxxx Capital Advisors
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
if to Xx. Xxxxxx, to:
Xx. Xxxxx Xxxxxx
000 X. 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
if to Partners, to:
P.A.W. Partners, L.P.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxx Xxxxxxxxx
Facsimile No.: 000-000-0000
if to Offshore, to:
P.A.W. Offshore Fund, Ltd.
c/o P.A.W. Partners, L.P.
10 Glenville Street
Greenwich, Conn 06831
Attn: Xxxx Xxxxxxxxx
Facsimile No.: 000-000-0000
if to Xx. Xxxxxxxx, to:
Xx. Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxx. #0
Xxx Xxxxxxxxx, XX 00000
or to such other address as any party may hereafter specify to the other parties
hereto by notice sent in accordance with this Section 6(e). Each such notice,
request or other communication shall be effective when delivered at the address
specified in this Section 6(e).
(f) Headings; Execution in Counterparts. The headings and
captions contained herein are for convenience of reference only and shall not
control or affect the meaning or construction of any provision hereof. This
Agreement may be executed in any number of
11
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(g) Xxxxxxx Purchaser Representative. By the execution and
delivery of this Agreement, each Xxxxxxx Purchaser irrevocably constitutes and
appoints Xxxxxxx Capital Group LLC (the "Xxxxxxx Purchasers' Representative") as
such Xxxxxxx Purchasers' true and lawful attorney-in-fact, with full powers of
substitution to act in such Xxxxxxx Purchaser's name, place and stead with
respect to the subject matter of this Agreement, as amended, and all matters
related thereto. Each of the parties hereto and all third parties may
conclusively and absolutely rely, without inquiry, upon the action of the
Xxxxxxx Purchasers' Representative as the act of the Xxxxxxx Purchasers in
connection with the subject matter of this Agreement. Notice of any change in
the identity of the Xxxxxxx Purchasers' Representative shall be given to each of
the other parties hereto over the signature of each Xxxxxxx Purchaser, and no
party hereto shall be required to recognize the resignation or replacement of
the Xxxxxxx Purchasers' Representative until such notice is received by the
other parties hereto. Each Xxxxxxx Purchaser ratifies and confirms all that the
Xxxxxxx Purchasers' Representative shall do or cause to be done by virtue of its
appointment as the Xxxxxxx Purchasers' Representative hereunder. Any notices or
documents to be delivered hereunder to any Xxxxxxx Purchaser need only be made
to the Xxxxxxx Purchaser Representative.
12
IN WITNESS WHEREOF, this Agreement has been executed by or on
behalf of each of the parties hereto as of the date first above written.
VERTEX INTERACTIVE, INC.
By: /s/ Xxxxxxxx X.X. Xxxx
----------------------
Name: Xxxxxxxx X.X. Xxxx
Title: CEO
FEDERAL PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: President, Ninth Floor
Corporation, its general partner
RIT CAPITAL PARTNERS PLC
By: /s/ Xxxxxxx Xxxxxx
------------------
Authorised Signatories of Sofaer Capital Inc.
As agent and authorised investment adviser
MeesPierson (Cayman) Limited as trustee of
Sofaer Funds/ SCI Global Hedge Fund
By: /s/ Xxxxxxx Xxxxxx
------------------
Authorised signatories of Sofaer Capital Inc.
Authorised Investment Adviser
/s/ Xxxxxx Xxxxxxx
------------------
XX. XXXXXX XXXXXXX
/s/ Xxxxx Xxxxxx
----------------
XX. XXXXX XXXXXX
/s/ Xxxxxxx Xxxxxxxx
--------------------
XX. XXXXXXX XXXXXXXX
P.A.W. PARTNERS, L.P.
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Operating Officer of General
Partner
P.A.W. OFFSHORE FUND, LTD.
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Operating Officer of Investment
Advisor
XXXXXXX PURCHASERS:
ALZA CORPORATION RETIREMENT PLAN
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
CITY OF MILFORD PENSION & RETIREMENT
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
NFIB EMPLOYEE PENSION TRUST
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
NFIB CORPORATE ACCOUNT
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
NORWALK EMPLOYEES' PENSION PLAN
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
PUBLIC EMPLOYEE RETIREMENT SYSTEM
OF IDAHO
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
CITY OF STAMFORD FIREMEN'S PENSION
PLAN
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
THE XXXXXXX XXXXXX FOUNDATION
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
ASPHALT GREEN, INC.
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXX XXXXXX FOUNDATION
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX FOUNDATION
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
ROANOKE COLLEGE
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
A. XXXXX XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
ALEXA X. XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX FAMILY LLC
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXXXX X. XXXXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
THE XXXXXX XXXXXXXX FAMILY TRUST
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXX XXX X. XXXXXXXX TRUST
FOR SELF
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
HBL CHARITABLE UNITRUST
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX XXXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX XXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX X. XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
PSYCHOLOGY ASSOCIATES
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXXX XXXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX XXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXX X. XXXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX CAPITAL, LLC
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXXX X. XXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX TRUST CO. OF THE BAHAMAS
LTD. AS TRUSTEE U/A/D 11/30/93
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX X. XXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX XXXX XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXXX X. XXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX FAMILY LLC
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX & XXXXX XXXXXXX JTWROS
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX X. XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXX XXXXXX XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX X. XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXX X. XXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXX X. & XXXXXXXXX X. XXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXX X. XXXXXXX
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
XXXXXXX INVESTMENT PARTNERS LP
By: Xxxxxxx Capital Group LLC,
as attorney-in-fact
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Member
