exv4w18






EXHIBIT 4.18




REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement, dated as of November 17, 2009 (this “Agreement”),
is entered into by and among GSI Commerce, Inc, a Delaware corporation (the “Parent”), and
each of the persons and entities holding Common Stock of Parent and listed on Schedule I hereto
(collectively, the “Holders”) and any additional Holder that becomes a party to this
Agreement by executing and delivering to Parent a counterpart signature page in the form attached
hereto on Schedule II (such person shall be deemed a “Holder” for all purposes of this Agreement
upon Parent countersigning such Schedule II).



WITNESSETH:




     WHEREAS, Parent, Cola Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Parent, Retail Convergence, Inc., a Delaware corporation (“RCI”), the
principal stockholders (the “Principal Stockholders”) of RCI identified therein, and
William J. Fitzgerald, as the Stockholders’ Representative, have entered into an Agreement and Plan
of Merger dated as of October 27, 2009, (as amended, supplemented or otherwise modified from time
to time, the “Merger Agreement”), setting forth the terms and conditions under which
Acquisition Sub will merge (the “Merger”) with and into RCI with RCI surviving as a
subsidiary of Parent. Capitalized terms used but not defined herein will have the meanings
ascribed to them in the Merger Agreement; and



     WHEREAS, it is a condition of RCI’s and the Principal Stockholders’ obligations to consummate
the Merger that this Agreement be executed and delivered by Parent to RCI and the Principal
Stockholders;



     NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:



     1. Definitions



          (a) “Affiliate” means, with respect to any specified person, any other person who, directly or
indirectly, controls, is controlled by, or is under common control with such person, including
without limitation any general partner, managing member, manager, officer or director of such
person or any private equity, venture capital or other investment fund now or hereafter existing
that is controlled by one or more general partners, managing members or managers of, or shares the
same management company with, such person.




          (b) “Automatic Shelf Registration Statement” has the meaning ascribed to it in Rule 405.




 









 








          (c) “Business Day” means any day, except a Saturday, Sunday or legal holiday on which the SEC
is closed and not accepting filings under the Securities Act as of such date.




          (d) “Common Stock” means the shares of common stock, par value $.01 per share, of Parent.




          (e) “Effectiveness Period” means the period commencing upon the Filing Date and ending on the
date that all Securities have ceased to be Registrable Securities. 




          (f) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.




          (g) “Existing Registration Agreements” means the agreements set forth on Schedule III hereto.




          (h) “Holder” has the meaning set forth in the preamble to this Agreement.




          (i) “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships, of a natural person referred to
herein.




          (j) “Merger Agreement” has the meaning set forth in the recitals to this Agreement.




          (k) “Registrable Securities” means the Securities and any security issued with respect thereto
upon any stock dividend, split or similar event until, in the case of any such security, the
earliest of (i) its effective registration under the Securities Act and resale in accordance with
the Shelf Registration Statement, (ii) its sale to the public pursuant to Rule 144 under the
Securities Act and (iii) the time when it may be sold pursuant to Rule 144 without restriction.




          (l) “Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the SEC.




          (m) “Rule 405” means Rule 405 under the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the SEC.




          (n) “Rule 424” means Rule 424 under the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the SEC.




          (o) “SEC” means the Securities and Exchange Commission.




 









 








          (p) “Securities” means the Common Stock of Parent issued pursuant to the Merger Agreement as
Total Merger Stock Consideration (including any Parent Stock issued pursuant to the Company
Guaranty Shareholder Agreement).




          (q) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.




          (r) “Shelf Registration Statement” has the meaning set forth in Section 2 hereof, including
amendments to such registration statement, all exhibits to such registration statement, all
materials incorporated by reference in such registration statement and, where applicable, any
replacement registration statement filed in order to register the resale of the Registrable
Securities.




     2. Shelf Registration. As soon as practicable following the filing with the Secretary of
State of the State of Delaware of a Certificate of Merger effecting the Merger (the
“Effective Time”), but in no event later than one hour after the opening of trading
on the Nasdaq Global Select Market on the next Business Day after the Effective Time (“Filing
Date”), Parent will file with the SEC either (i) an Automatic Shelf Registration Statement
which registers for resale from time to time the Registrable Securities by the Holders (such
registration statement may be a universal shelf registration statement relating to securities of
Parent, including Parent Stock, to be issued from time to time by Parent or selling stockholders)
and any prospectus supplement required to be filed with the SEC pursuant to Rule 424 under the
Securities Act in order to effect the resale registration of the Registrable Securities, or (ii) a
prospectus supplement to an already effective Automatic Shelf Registration Statement in order to
effect the resale registration of the Registrable Securities (the registration statements referred
to in (i) and (ii) shall each be referred to as the “Shelf Registration Statement”).
Parent will use its reasonable best efforts to keep the Shelf Registration Statement continuously
effective under the Securities Act until the expiration of the Effectiveness Period. Holders will
be named as selling securityholders in the Shelf Registration Statement or the applicable
prospectus supplement in such a manner as to permit Holders to deliver the prospectus to purchasers
of Registrable Securities in accordance with applicable law. In the event that additional
Securities are issued after the date hereof to the Company Guaranty Shareholders, the Company
Guaranty Shareholders will become parties to this Agreement as provided in the preamble to this
Agreement and, as expeditiously as possible following such issuance and in any event within ten
(10) Business Days after the Company Guaranty Shareholders execute a joinder hereto and deliver to
Parent a completed and signed Selling Stockholder Questionnaire in the form attached hereto as
Appendix A (the “Selling Stockholder Questionnaire”), Parent will prepare and file with the
SEC any amendments and supplements to the Shelf Registration Statement and the prospectus included
in the Shelf Registration Statement, and any prospectus supplements, as may be necessary to include
such additional Registrable Securities therein and otherwise to permit such Holders to sell
Registrable Securities thereunder.



 









 





     3. Exceptions to Parent’s Obligations. It shall be a condition precedent to the
obligations of Parent to take any action pursuant to Section 2 hereof with regard to a particular
Holder’s Registrable Securities that such Holder provide Parent with a completed and signed
Selling Stockholder Questionnaire. A Holder of Registrable Securities that does not provide Parent
with a completed and signed Selling Stockholder Questionnaire on or before two (2) Business Days
prior to the Closing Date will not be named as a selling securityholder in the Shelf Registration
Statement when it becomes effective or the initial prospectus supplement that is filed after the
Effective Time (the “Initial Prospectus Supplement”), and will not be able to use the Shelf
Registration Statement or the Initial Prospectus Supplement to resell Registrable Securities.
However, such a Holder of Registrable Securities may thereafter provide Parent with a completed and
signed Selling Stockholder Questionnaire, following which Parent will, within thirty (30) days
after that date (except as described below), file a prospectus supplement, or, if required, file a
post-effective amendment in order to permit resales of such Holder’s Registrable Securities.
However, if Parent receives the completed and signed Selling Stockholder Questionnaire during a
period when the Shelf Registration Statement is suspended (“Suspension Period”), or if
Parent initiates a Suspension Period within thirty (30) days after Parent receives the completed
and signed Selling Stockholder Questionnaire, then Parent will, except as described below, make the
filing within thirty (30) days after receipt of the signed Selling Stockholder Questionnaire or ten
(10) days after the end of the Suspension Period, whichever is later. Notwithstanding anything
herein to the contrary, in no event will Parent be required to file more than one prospectus
supplement per 30-day period in order to name as a selling securityholder any Holder that has
provided the Company with a completed and signed Selling Stockholder Questionnaire after two (2)
Business Days prior to the Closing Date. Each Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by such Holder or its
intended method of distribution of such Registrable Securities required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading, and promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such prospectus shall
not contain, with respect to such Holder or the distribution of such Registrable Securities, an
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 .



     4. Registration Procedures. In connection with the registration obligations of Parent
under Section 2 hereof, Parent will:



          a. As promptly as practicable, prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement continuously effective during the Effectiveness Period; cause the related
prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the




 









 







Securities Act; and use its reasonable best efforts to comply with the provisions of the
Securities Act applicable to it with respect to the disposition of Registrable Securities covered
by the Shelf Registration Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the Holders thereof set forth in such Shelf Registration Statement as so
amended or such prospectus as so supplemented.




          b. If the Shelf Registration Statement covering resales of the Registrable Securities ceases
to be effective for any reason at any time during the Effectiveness Period (other than because all
securities registered thereunder have been resold pursuant thereto or have otherwise ceased to be
Registrable Securities), Parent will use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness thereof at the earliest practicable date.




          c. If upon filing of Parent’s Annual Report on Form 10-K for its 2009 fiscal year Parent will
not qualify as a well-known seasoned issuer as defined in Rule 405, then Parent shall use its
reasonable best efforts to make such filings as are necessary (including filing a post-effective
amendment to the Shelf Registration Statement and/or filing a new non-automatic shelf registration
statement, if necessary) to maintain an effective Shelf Registration Statement related to the
resale of the Registrable Securities during the Effectiveness Period. If a new non-automatic shelf
registration statement is filed, Parent will use its reasonable best efforts to cause the new Shelf
Registration Statement to become effective as promptly as practicable after such filing and to
keep the new Shelf Registration Statement continuously effective during the Effectiveness Period.




          d. During the Effectiveness Period, deliver to each Holder, in connection with any sale of
Registrable Securities pursuant to the Shelf Registration Statement, without charge, as many copies
of the prospectus relating to such Registrable Securities and any amendment or supplement thereto
as such Holder may reasonably request; and Parent hereby consents to the use of such prospectus or
each amendment or supplement thereto by each Holder in connection with any offering and sale of the
Registrable Securities covered by such prospectus or any amendment or supplement thereto in the
manner set forth therein.




          e. As promptly as practicable, use its reasonable best efforts to register or qualify the
Registrable Securities covered by the Shelf Registration Statement under the securities or Blue Sky
laws of such states as the Holders thereof shall reasonably request, and do any and all other acts
and things that may be necessary to enable the Holders thereof to consummate the public sale or
other disposition in such states of the Registrable Securities owned by the Holders; provided,
however, that Parent shall not be required for any such purpose to qualify for any such purpose as
a foreign corporation or execute a general consent to service of process in any jurisdiction.




 









 








          f. If any of the Registrable Securities covered by the Shelf Registration Statement filed
pursuant Section 2 hereof are to be sold pursuant to an underwritten public offering, Parent shall
enter (and each participating Holder agrees to enter) into a written agreement with the managing
underwriter (which shall be a reputable underwriter selected by Parent, in its sole discretion) in
such form and containing such provisions (including, if the underwriter so requests, customary
contribution provisions on the part of Parent) as are customary in the securities business for such
an arrangement. Each Holder hereby agrees that it may not participate in any underwritten offering
hereunder unless it (i) agrees to sell its Registrable Securities on the terms provided in
underwriting arrangements approved by Parent and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.




          g. Cause all of the Registrable Securities to be listed on the Nasdaq Global Select Market.




          h. Promptly notify the selling Holders of Registrable Securities at any time during the
Effectiveness Period when the Shelf Registration Statement, prospectus, prospectus supplement or
post-effective amendment, or any document incorporated by reference in any of the foregoing,
contains an untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances under which they were made. In the event Parent notifies Holders pursuant to the
preceding sentence, (i) the Holders will suspend, promptly upon their receipt of the notice
referred to above, their use of any prospectus or prospectus supplement relating to such
registration in connection with any sale or offer to sell Registrable Securities; and (ii) Parent
will use its reasonable best efforts to update the suspended Shelf Registration Statement as may be
necessary to permit the Holders to resume use thereof in connection with the offer and sale of
their Registrable Securities in accordance with applicable law. Notwithstanding the foregoing,
during the first 45 days of the Effectiveness Period, Parent shall not suspend the use of the
Shelf Registration Statement for more than two (2) Business Days in the aggregate and, during the
first 180 days of the Effectiveness Period, Parent shall not suspend the use of the Shelf
Registration Statement for more than twenty (20) Business Days in the aggregate. Anything in this
Agreement to the contrary notwithstanding, Parent shall not be in breach of this Agreement if
Parent is required to suspend the use of the Shelf Registration Statement for any period of time
because PricewaterhouseCoopers LLP fails to provide Parent with a written consent (“PWC
Consent”) to the filing and incorporation by reference of Company’s Audited Financial
Statements (as defined in the Merger Agreement) into Parent’s filings under the Securities Act,
including the Shelf Registration Statement, within the time period required by Form 8-K (“PWC
Event”). If a PWC Event occurs, Parent’s obligations under Section 2 hereof shall be suspended
until Parent meets all of the registrant requirements of General Instruction 1.A of Form S-3.




 









 








          i. Cooperate and assist in any filings required to be made with the Financial Industry
Regulatory Authority.




     5. Intentionally Omitted.



     6. Registration Expenses. Parent will bear all fees and expenses incurred in
connection with the performance by Parent of its obligations under Sections 2 and 4 of this
Agreement. Such fees and expenses will include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses (x) with respect to filings required to be
made with the Financial Industry Regulatory Authority and (y) of compliance with federal and state
securities or Blue Sky laws, (ii) printing expenses, (iii) duplication expenses relating to copies
of any Shelf Registration Statement, prospectus or prospectus supplement delivered to any Holders
hereunder, (iv) fees and disbursements of counsel for Parent in connection with the Shelf
Registration Statement, and (v) fees and disbursements of the registrar and transfer agent for the
Common Stock. In addition, Parent shall pay the internal expenses of Parent (including, without
limitation, all salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in connection with the
listing by Parent of the Registrable Securities on any securities exchange on which similar
securities of Parent are then listed and the fees and expenses of any person, including special
experts, retained by Parent. Notwithstanding the provisions of this Section 6, each Holder will pay
any broker’s commission, agency fee or underwriter’s discount or commission and any legal fees and
expenses of its counsel or other advisers in connection with the sale of the Registrable
Securities under the Shelf Registration Statement.



     7. Indemnification and Contribution.



          a. Parent agrees to indemnify and hold harmless each Holder, each person, if any, who controls
any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each affiliate of any Holder within the meaning of Rule 405 from and against any
and all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement or any amendment thereof, any preliminary prospectus, or any
prospectus (as amended or supplemented) or any issuer free writing prospectus prepared by it or
authorized by it in writing for use by such Holder, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to Parent in writing by such Holder expressly for use
therein; provided that the foregoing indemnity shall not inure to the benefit of any Holder (or to
the benefit of any person controlling such Holder) from whom the person asserting such losses,
claims or liabilities purchased the


 









 







Registrable Securities, if a copy of the prospectus or the issuer free writing prospectus
(both as then amended or supplemented if Parent shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to such person, if required by law so
to have been delivered at or prior to the written confirmation of the sale of the Registrable
Securities to such person, and if the prospectus or the issuer free writing prospectus (both as so
amended or supplemented) would have cured the defect giving rise to such losses, claims, damages or
liabilities.




          b. Each Holder agrees severally and not jointly to indemnify and hold harmless Parent and its
directors, its officers who sign the Shelf Registration Statement and any amendment, supplement or
replacement thereof and each person, if any, who controls Parent (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) or any other Holder, to the
same extent as the foregoing indemnity from Parent to such Holder, but only with reference to
information relating to such Holder furnished to Parent in writing by such Holder expressly for use
in such Shelf Registration Statement, prospectus or issuer free writing prospectus or amendment or
supplement thereto. In no event shall the liability of any Holder hereunder be greater in amount
than the dollar amount by which the proceeds received by such Holder upon the sale of the
Registrable Securities pursuant to the Shelf Registration Statement giving rise to such
indemnification obligation exceeds the amount of any damages that such Holder has otherwise been
required to pay with respect to such untrue or alleged untrue statement or omission or alleged
omission.




          c. In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b)
hereof, such person (the “indemnified party”) shall promptly notify the person against whom
such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate under applicable codes of
professional conduct. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in writing by, in the case
of parties indemnified pursuant to




 









 







Section 7(a), the Holders of a majority of the Registrable Securities covered by the Shelf
Registration Statement or applicable prospectus supplement held by Holders that are indemnified
parties pursuant to Section 7(a) and, in the case of parties indemnified pursuant to Section 7(b),
Parent. The indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.




          d. To the extent that the indemnification provided for in Section 7(a) or 7(b) is unavailable
to an indemnified party (other than because such party is not entitled to indemnification
thereunder) or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, will contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the indemnifying party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.. The relative fault
of the Holders on the one hand and Parent on the other hand shall be 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
Holders or by Parent, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders’ respective obligations
to contribute pursuant to this Section 7(d) are several in proportion to the respective number of
Registrable Securities they have sold pursuant to the Shelf Registration Statement, and not joint.




          e. The parties hereto agree that it would not be just and equitable if contribution pursuant
to Section 7(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to therein. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities referred
to in Section 7(d) shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding




 









 







Section 7(d) and this Section 7(e), no indemnifying party that is a Holder will be required to
contribute any amount in excess of the amount by which the proceeds received by it from the sale of
Registrable Securities exceeds the amount of any damages that such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.




          f. The remedies provided for in this Section 7 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to an indemnified party at law or in equity,
hereunder, under the Merger Agreement or otherwise. The rights and obligations of the parties to
this Agreement shall not be limited by any limitations (including, but not limited to, limitations
as to time or amount) that may be provided in the Merger Agreement.




          g. The indemnity and contribution provisions contained in this Section 7 will remain operative
and in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Holder, any person controlling any Holder or any
affiliate of any Holder or by or on behalf of Parent, its officers or directors or any person
controlling Parent and (iii) the sale of any Registrable Securities by any Holder pursuant to the
Shelf Registration Statement.




     8. Miscellaneous. 



          a. Successors and Assigns. The rights under this Agreement may be assigned (but only with all
related obligations) by a Holder to a transferee of Registrable Securities that (i) is an Affiliate
of a Holder; (ii) is a Holder’s Immediate Family Member or trust or other estate planning vehicle
for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members;
or (iii) in the case of an entity Holder, to such Holder’s partners, members, shareholders or other
equityholders; provided, however, that (x) Parent is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee and the Registrable
Securities with respect to which such rights are being transferred; and (y) such transferee agrees
in a written instrument delivered to Parent to be bound by and subject to the terms and conditions
of this Agreement and delivers an executed Selling Stockholder Questionnaire to Parent. As prompt
as practicable following such assignment and notice to Parent, Parent will prepare and file with
the SEC any amendments and supplements to the Shelf Registration Statement and the prospectus
included in the Shelf Registration Statement as may be necessary to name such transferee as a
selling Holder thereunder and otherwise to permit such transferee to sell Registrable Securities
thereunder. The terms and conditions of this Agreement inure to the benefit of and are binding upon
the respective successors and permitted assignees of the Holders.




 









 








          b. No Conflicting Agreements. Parent will not enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders in this Agreement. Parent
represents and warrants that it is not currently a party to any agreement with respect to any of
its equity or debt securities granting any registration rights to any person other than the
Existing Registration Agreements.




          c. Notices. All notices, requests, demands, or other communications required or permitted to
be given under this Agreement will be in writing and deemed given upon: (i) personal delivery,
(ii) confirmed delivery by a standard overnight courier or when delivered by hand, (iii) when
mailed in the United States by certified mail, postage prepaid, addressed at the following
addresses (or at such address for a party as will be specified by notice given hereunder), or (iv)
transmitter’s confirmation of a receipt of a facsimile transmission: if to Parent, to it at 935
First Avenue, King of Prussia, Pennsylvania, 19406, Attention: General Counsel, facsimile no. (610)
265-1730, and if to Holder, to the address or facsimile transmission number of such Holder set
forth on the signature page hereto.




          d. Interpretation. The words “include,” “includes,” and “including” when used in this
Agreement will be deemed in each case to be followed by the words “without limitation.” The
respective parties hereto and their attorneys have negotiated this Agreement and the language
hereof will not be construed for or against either party, as drafter. A reference to a section,
schedule, or an exhibit will mean a section in, or schedule or exhibit to, this Agreement unless
otherwise explicitly set forth.




          e. Counterparts. This Agreement may be executed (i) in one or more partially or fully
executed counterparts, each of which will be deemed an original and will bind the signatory, but
all of which together will constitute the same instrument, and (ii) by facsimile.




          f. Miscellaneous. This Agreement, the Merger Agreement, and the documents referred to in this
Agreement constitute the entire agreement among the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.




          g. No Joint Venture. Nothing in this Agreement will be deemed or construed as creating a
joint venture or partnership between any of the parties hereto. No party is by virtue of this
Agreement authorized as an agent, employee, or legal representative of any other party. No party
will have the power to control the activities and operations of any other and their status is, and
at all times, will continue to be, that of independent contractors with respect to each other. No
party will have any power or authority to bind or commit any other. No party will hold itself out
as having any authority or relationship in contravention of this Section.




 









 








          h. Governing Law. This Agreement will be governed in all respects, including validity,
interpretation, and effect, by the laws of the State of New York, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.




          i. Amendments and Waivers. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, and waivers or consents to departures from the provisions hereof may
not be given, unless Parent has obtained the written consent of Holders of a majority of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to the Shelf Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities being sold by such Holders pursuant to such Shelf
Registration Statement; provided that the provisions of this sentence may not be amended except in
accordance with the provisions of the immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment waiver or consent or thereafter will be
bound by any such amendment waiver or consent effected pursuant to this Section 8(i) whether or not
any notice, writing or marking indicating such amendment waiver or consent appears on the
Registrable Securities or is delivered to such Holder.




          j. Severability. If any term or other provision of this Agreement is invalid, illegal, or
incapable of being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement will nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party hereto. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree
that the body making the determination of invalidity or unenforceability shall have the power to
reduce the scope, duration or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified.




          k. Submission to Jurisdiction. Except as provided in 8(l) below, all actions and proceedings
arising out of or relating to this Agreement will be heard and determined exclusively in the United
States District Court for the Southern District of New York. The parties hereto hereby (a) submit
to the exclusive jurisdiction of the United States District Court for the Southern District of New
York for the purpose of any action arising out of or relating to this Agreement brought by any
party hereto, and (b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of
the above-named court, that its property is exempt or immune from attachment or execution, that the
action is brought in an inconvenient forum, that the venue




 









 







of the action is improper, or that this Agreement or the transactions contemplated hereby may
not be enforced in or by any of the above-named courts.




          l. Specific Enforcement. Each party acknowledges and agrees that each party hereto will be
irreparably damaged in the event any of the provisions of this Agreement are not performed by the
parties in accordance with their specific terms or are otherwise breached. Accordingly, it is
agreed that each of Parent and the Holders shall be entitled to an injunction to prevent breaches
of this Agreement, and to specific enforcement of this Agreement and its terms and provisions in
any action instituted in any court of the United States or any state having subject matter
jurisdiction.




          m. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.




[SIGNATURE PAGE FOLLOWS]




 









 




IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.




	 	 	 	 	 
	 	GSI COMMERCE, INC.

 	 
	 	By:  	/s/
Arthur H. Miller
 	 
	 	Name: Arthur H. Miller 
	 	Title: EVP
	 



[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]

















 







	 	 	 	 	 	 	 
	 	 	BERKSHIRE FUND V, LIMITED PARTNERSHIP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Fifth Berkshire Associates LLC,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bradley M. Bloom
 

Name: Bradley M. Bloom
	 	 
	 

	 	 	 	Title: Managing Director	 	 






	 	 	 	 	 
	 

	 	Address:
	 	200 Clarendon Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. 617-227-6105






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 	 	 
	 	 	BERKSHIRE INVESTORS LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ Bradley M. Bloom
 

Name: Bradley M. Bloom
	 	 
	 

	 	 	 	Title: Managing Director	 	 






	 	 	 	 	 
	 

	 	Address:
	 	200 Clarendon Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. 617-227-6105






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 	 	 
	 	 	BREAKAWAY PARTNERS I, LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Breakaway Ventures, LLC,	 	 
	 

	 	 	 	Its Managing Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dennis Baldwin	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dennis Baldwin	 	 
	 

	 	 	 	Title: Managing Member	 	 






	 	 	 	 	 
	 

	 	Address:
	 	399 Boylston Street, 7th Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. 617-671-0557






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	/s/ Mark A. Carleo
 

Signature of Holder
	 	 






	 	 	 	 	 
	 

	 	Mark A. Carleo
 

Print name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	DAVENPORT BCCH, LLC	 	 
	 
	 	 	 	 
	 

	 	By: /s/ DeWitt P. Davenport
 

Name: DeWitt P. Davenport
	 	 
	 

	 	Title: Manager and Member	 	 






	 	 	 	 	 
	 

	 	Address:
	 	20 North Main Street
	 

	 	 	 	South Yarmouth, MA 02664
	 
	 	 	 	 
	 	 	Facsimile No. 508-760-3640






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	DEWITT P. DAVENPORT 1999 TRUST	 	 
	 
	 	 	 	 
	 

	 	By: /s/ DeWitt P. Davenport
 

Name: DeWitt P. Davenport
	 	 
	 

	 	Title: Trustee and not individually	 	 






	 	 	 	 	 
	 

	 	Address:
	 	20 North Main Street
	 

	 	 	 	South Yarmouth, MA 02664
	 
	 	 	 	 
	 	 	Facsimile No. 508-760-3640






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Benjamin D. Fischman
 

BENJAMIN D. FISCHMAN
	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Retail Convergence, Inc.
	 

	 	 	 	20 Channel Center, 3rd Floor
	 

	 	 	 	Boston, MA 02210
	 
	 	 	 	 
	 	 	Facsimile No. 617-695-7391






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	BENJAMIN D. FISCHMAN 2009 TRUST	 	 
	 

	 	- RCI U/D/T DATED JULY 30, 2009	 	 
	 
	 	 	 	 
	 

	 	/s/ Benjamin D. Fischman
 

Name: Benjamin D. Fischman, as Trustee, and Not
Individually
	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Retail Convergence, Inc.
	 

	 	 	 	20 Channel Center, 3rd Floor
	 

	 	 	 	Boston, MA 02210
	 
	 	 	 	 
	 	 	Facsimile No. 617-695-7391






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	/s/ Michael Frieze
 

Michael Frieze
	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Gordon Brothers Group
	 

	 	 	 	101 Huntington Avenue, 10th Floor
	 

	 	 	 	Boston, MA 02199
	 
	 	 	 	 
	 	 	Facsimile No. 617-422-6201






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 	 	 
	 	 	GC ENTREPRENEURS FUND IV, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	General Catalyst Partners IV, L.P.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 

	 	By:
	 	General Catalyst GP IV, LLC	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William J. Fitzgerald
 

Name: William J. Fitzgerald
	 	 
	 

	 	 	 	Title: Member and Chief Financial Officer	 	 






	 	 	 	 	 
	 

	 	Address:
	 	20 University Road, Suite 450
	 

	 	 	 	Cambridge, MA 02138
	 
	 	 	 	 
	 	 	Facsimile No. 617-243-7040






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 	 	 
	 	 	GENERAL CATALYST GROUP IV, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	General Catalyst Partners IV, L.P.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	General Catalyst GP IV, LLC	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William J. Fitzgerald
 

Name: William J. Fitzgerald
	 	 
	 

	 	 	 	Title: Member and Chief Financial Officer	 	 






	 	 	 	 	 
	 

	 	Address:
	 	20 University Road, Suite 450
	 

	 	 	 	Cambridge, MA 02138
	 
	 	 	 	 
	 	 	Facsimile No. 617-243-7040






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Cheryl L. Kaplan
 

Signature of Holder
	 	 
	 
	 	 	 	 
	 

	 	Cheryl L. Kaplan
 

Print Name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	/s/ Edward M. McNamara
 

Edward M. McNamara
	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Retail Convergence, Inc.
	 

	 	 	 	20 Channel Center, 3rd Floor
	 

	 	 	 	Boston, MA 02210
	 
	 	 	 	 
	 	 	Facsimile No. 617-695-7391






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	/s/ Mark McWeeny
 

Signature of Holder
	 	 
	 
	 	 	 	 
	 

	 	Mark McWeeny
 

Print Name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Jonathan W.G. Mugar
 

JONATHAN W.G. MUGAR
	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Mugar Enterprises
	 

	 	 	 	222 Berkeley Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. 617 267-3535






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 
	 

	 	/s/ Peter S. Mugar
 

PETER S. MUGAR
	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Mugar Enterprises
	 

	 	 	 	222 Berkeley Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. 617 267-3535






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	MUGAR VALUE FUND I LLC	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Peter S. Mugar
 

Name: Peter S. Mugar
	 	 
	 

	 	Title: Manager	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Mugar Enterprises
	 

	 	 	 	222 Berkeley Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. 617 267-3535






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 	 	 
	 	 	NED RETAIL CONVERGENCE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NED Manager LLC,	 	 
	 

	 	 	 	its Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stephen R Karp
 

Name: Stephen R Karp
	 	 
	 

	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven S. Fischman
 

Name: Steven S. Fischman
	 	 
	 

	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Douglass E. Karp
 

Name: Douglass E. Karp
	 	 
	 

	 	 	 	Title: Manager	 	 






	 	 	 	 	 
	 

	 	Address:
	 	One Wells Avenue
	 

	 	 	 	Newton, MA 02459
	 
	 	 	 	 
	 	 	Facsimile No. 617-243-7329






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Michael Rubin
 

Signature of Holder
	 	 
	 
	 	 	 	 
	 

	 	Michael Rubin
 

Print Name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	c/o GSI Commerce, Inc.	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	935 First Avenue	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	King of Prussia, PA 19406	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	(610) 491-7299	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Stacey Santo
 

Signature of Holder
	 	 
	 
	 	 	 	 
	 

	 	Stacey Santo
 

Print Name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 	 	 
	 	 	SFP JOINT VENTURE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Steven T. Wolf
 

Name: Steven T. Wolf
	 	 
	 

	 	 	 	Title: Partner	 	 






	 	 	 	 	 
	 

	 	Address:
	 	9 Blossom Lane
	 

	 	 	 	Wayland, MA 01788
	 
	 	 	 	 
	 	 	Facsimile No. 508-358-7481






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Shari Shakun
 

Signature of Holder
	 	 
	 
	 	 	 	 
	 

	 	Shari Shakun
 

Print Name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Gregory Sullivan
 

Gregory Sullivan
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 








	 	 	 	 	 
	 

	 	/s/ Mark Weinberg
 

Signature of Holder
	 	 
	 
	 	 	 	 
	 

	 	Mark Weinberg
 

Print Name of Holder
	 	 






	 	 	 	 	 	 	 
	 

	 	   Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	   Facsimile No.	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 








 







	 	 	 	 	 	 	 
	 

	 	WENTWORTH INVESTMENT LLC
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David T. Ting
 

Name: David T. Ting
	 	 
	 

	 	 	 	Title: Manager	 	 






	 	 	 	 	 
	 

	 	Address:
	 	c/o Mugar Enterprises
	 

	 	 	 	222 Berkeley Street
	 

	 	 	 	Boston, MA 02116
	 
	 	 	 	 
	 	 	Facsimile No. (617) 267-3535






[Signature Page to Registration Rights Agreement]




 








 







SCHEDULE I




Berkshire Fund V, Limited Partnership




Berkshire Investors LLC




Breakaway Partners, I, LLC




Mark A. Carleo




Davenport BCCH, LLC




DeWitt P. Davenport 1999 Trust




Benjamin D. Fischman




Benjamin D. Fischman 2009 Trust — RCI U/D/T dated July 30, 2009




Michael Frieze




GC Entrepreneurs Fund IV, L.P.




General Catalyst Group IV, L.P.




Cheryl L. Kaplan




Edward M. McNamara




Mark McWeeny




Jonathan W.G. Mugar




Peter S. Mugar




Mugar Value Fund I LLC




NED Retail Convergence LLC




Michael Rubin




Stacey Santo




SFP Joint Venture




Shari Shakun




Gregory Sullivan




Mark Weinberg




Wentworth Investment LLC





 











 





SCHEDULE II




Joinder





     The undersigned hereby agrees to be bound by the terms of the Registration Rights Agreement
dated as of ___, 2009 by and among GSI Commerce, Inc. (“Parent”) and the Holders named
therein as a Holder in accordance with the terms thereof. The undersigned acknowledges and agrees
that such joinder shall not be effective until countersigned by Parent.



	 	 	 	 	 
	 	 	 
	 	 	 
	 	Signature of Holder 	 
	 	 	 
	 	Print Name of Holder 	 
	 
	 	Address:
 	 
 

 
 	 
	 
	 	Facsimile No. 	
 
 	 



Approved and accepted:




	 	 	 	 	 
	GSI COMMERCE, INC.

 	 	 
	By:  	 	 	 
	 	Print name: 	 	 
	 	Print title: 	 	 



 









 






	 	 	 	 	 



Schedule III



1. The Second Amended and Restated Registration Rights Agreement dated as of September 13, 2000 by
and among Parent and the holders listed on the signature pages therein, as amended; and



2. The Registration Rights Agreement, dated July 31, 1995, by and between Parent and MR
Acquisitions, Inc.



3. The Registration Rights Agreement dated as of July 2, 2007 between Parent and the initial
purchaser named therein.




 









 








Appendix A




GSI Commerce, Inc.




Form of




Notice of Registration Statement




and




Selling Securityholder Questionnaire




November 2009





     GSI Commerce, Inc. (the “Company”) intends to file with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 or another appropriate form (the
“Shelf Registration Statement”) for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”), of shares of the Company’s common stock, par value
$.01 per share (the “Common Stock”), in accordance with the Registration Rights Agreement (the
“Agreement”) to be entered into by and among the Company and each Holder named therein. A copy of
the Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Agreement.



     In order to have Registrable Securities included in the Shelf Registration Statement and
related prospectus or prospectus supplement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire (the “Notice and Questionnaire”)
must be completed, executed and delivered to the Company at the address set forth herein for
receipt on or prior to two (2) business days prior to the closing date of the Merger. Record
holders and beneficial owners of Registrable Securities who do not complete, execute and return
this Notice and Questionnaire (i) will not be named as selling securityholders in the Shelf
Registration Statement and related prospectus or prospectus supplement (or a supplement or
amendment thereto); and (ii) may not use the applicable prospectus and prospectus supplement for
resales of Registrable Securities.



     Certain legal consequences arise from being named as a selling securityholder in the Shelf
Registration Statement and related prospectus or prospectus supplement. Accordingly, record holders
and beneficial owners of Registrable Securities are advised to consult their own securities law
counsel regarding the consequences of being named or not being named as a selling securityholder in
the Shelf Registration Statement and related prospectus or prospectus supplement.



ELECTION




     The undersigned holder (the “Selling Securityholder”) of Registrable Securities hereby elects
to include in the Shelf Registration Statement and related prospectus or prospectus supplement the
Registrable Securities beneficially owned by it and described below in Item (3). The undersigned,
by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice and Questionnaire and the
Agreement, including, without limitation, Section 7 of the Agreement.



 









 





     Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement and
related prospectus or prospectus supplement, the Selling Securityholder will be required to deliver
to the Company the Notice of Transfer (completed and signed) set forth in Exhibit 1 to this Notice
and Questionnaire.



     The Selling Securityholder hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete:



 









 





QUESTIONNAIRE





	(1)	(a)	 	Full legal name of Selling Securityholder:
	 
	 	 	 	 

	 
	 	(b)	 	Full legal name of registered Holder (if not the same as in (a) above) of Registrable
Securities described in Item (3) below:
	 
	 	 	 	 

	 
	 	(c)	 	Full legal name of DTC Participant (if applicable and if not the same as (b) above)
through which Registrable Securities described in Item (3) below are held:
	 
	 	 	 	 

	 
	(2) 	Address for notices to Selling Securityholder:
	 
	 	 	 	 


 


 

Telephone:
 


Fax:
 


Contact Person:
 


E-mail for Contact Person:
	 
	(3) 	Beneficial ownership of Registrable Securities:
	 
	 	 	 	Except as set forth below in this Item (3), the undersigned wishes to include all
Registrable Securities issued to the undersigned in connection with the Merger,
including without limitation, any Registrable Securities beneficially owned by the
undersigned which are placed in escrow to secure certain indemnification obligations
pursuant to the Merger Agreement.
	 
	 	 	 	State any exceptions here:
	 
	 

	 
	 

	 
	(4) 	Beneficial ownership of other securities of the Company:
	 
	 	 	 	Except as set forth below in this Item (4), the undersigned Selling Securityholder is not
the beneficial or registered owner of any other securities of the Company, other than
the Registrable Securities.
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	(5) 	Individuals who exercise voting and/or dispositive powers with respect to the securities:
	 
	 	 	 	Unless the Selling Securityholder is an entity that is required to file reports with the
Commission (a “Reporting Company”) pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), the Selling Securityholder
must disclose the name of the natural person(s) who exercise(s) sole or shared voting
and/or dispositive powers with respect to the Registrable Securities and other
securities of the Company listed above in Items 3 and 4, respectively. Selling




 









 






	 	 	 	Securityholders should disclose the beneficial holders, not nominee holders or other such
holders of record.






	 	(a)	 	Is the holder a Reporting Company?
	 
	 	 	 	Yes                               No                     
	 
	 	 	 	If “No”, please answer Item (5)(b).
	 
	 	(b)	 	List below the individual or individuals who exercise voting and/or dispositive
powers with respect to the securities of the Company:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	Please note that the names of the persons listed in (b) above will be included in the
Shelf Registration Statement and related prospectus or prospectus supplement.
	 
	(6) 	Relationships with the Company:
	 
	 	 	 	Except as set forth below, neither the Selling Securityholder nor any of its affiliates,
officers, directors or principal equity holders (5% or more) has held any position or
office or has had any other material relationship with the Company (or its
predecessors or affiliates, including Retail Convergence, Inc.) during the past three
years.
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	(7) 	Plan of Distribution:
	 
	 	 	 	Except as set forth below, the undersigned Selling Securityholder intends to distribute
(if at all) the Registrable Securities described above in Item (3) only as set forth
in Exhibit 2 hereto, which Exhibit 2 is incorporated herein by reference in its
entirety.
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	Note: In no event may such method(s) of distribution take the form of an underwritten
offering of Registrable Securities without the prior written agreement of the Company.
	 
	(8) 	Broker-Dealers:
	 
	 	 	 	The Commission requires that all Selling Securityholders that are registered
broker-dealers or affiliates of registered broker-dealers be so identified in the
Shelf Registration Statement. In addition, the Commission requires that all Selling
Securityholders that are registered broker-dealers be named as underwriters in the
Shelf Registration Statement and related prospectus or prospectus supplement, even if
they did not receive the Registrable Securities as compensation for underwriting
activities.
	 
	 	(a)	 	State whether the undersigned Selling Securityholder is a registered broker-dealer:




 









 












	 	 	 	Yes                               No                     
	 
	 	(b)	 	If the answer to (a) is “Yes”, you must answer (i) and (ii) below, and (iii) below, if
applicable. Your answers to (i) and (ii) below, and (iii) below, if applicable, will be
included in the Shelf Registration Statement and related prospectus or prospectus
supplement.






	 	(i)	 	Were the Registrable Securities acquired as compensation for underwriting
activities?






	 	 	 	Yes                               No                     
	 
	 	 	 	If you answered “Yes”, please provide a brief description of the transaction(s)
in which the Registrable Securities were acquired as compensation:






	 	(ii)	 	Were the Registrable Securities acquired for investment purposes?
	 
	 	 	 	Yes                               No                     
	 
	 	(iii)	 	If you answered “No” to both (i) and (ii), please explain the Selling
Securityholder’s reason for acquiring the Registrable Securities:






	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	(c)	 	State whether the undersigned Selling Securityholder is an affiliate of a registered
broker-dealer and, if so, list the name(s) of the broker-dealer affiliate(s):
	 
	 	 	 	Yes                               No                     
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	(d)	 	If you answered “Yes” to question (c) above:






	 	(i)	 	Did the undersigned Selling Securityholder purchase Registrable Securities
in the ordinary course of business?






	 	 	 	Yes                               No                     
	 
	 	 	 	If the answer is “No” to question (d)(i), provide a brief explanation of the
circumstances in which the Selling Securityholder acquired the Registrable
Securities:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 







	 	(ii)	 	At the time of the purchase of the Registrable Securities, did the
undersigned Selling Securityholder have any agreements, understandings or
arrangements, directly or indirectly, with any person to dispose of or distribute the
Registrable Securities?






	 	 	 	Yes                               No                     
	 
	 	 	 	If the answer is “Yes” to question (d)(ii), provide a brief explanation of such
agreements, understandings or arrangements:




 









 












	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	If the answer is “No” to Item (8)(d)(i) or “Yes” to Item (8)(d)(ii), you will be named as
an underwriter in the Shelf Registration Statement and the related prospectus or
prospectus supplement.
	 
	(9) 	Hedging and short sales:
	 
	 	(a)	 	State whether the undersigned Selling Securityholder has or will enter into “hedging
transactions” with respect to the Registrable Securities:
	 
	 	 	 	Yes                               No                     
	 
	 	 	 	If “Yes”, provide below a complete description of the hedging transactions into
which the undersigned Selling Securityholder has entered or will enter and the
purpose of such hedging transactions, including the extent to which such
hedging transactions remain in place:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	(b)	 	Set forth below is Compliance and Disclosure Interpretation No. 239.10 of the
Commission’s Compliance and Disclosure Interpretations: Securities Act Sections regarding
short selling:
	 
	 	 	 	“239.10 An issuer filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. One of the selling shareholders wanted to do a
short sale of common stock “against the box” and cover the short sale with registered
shares after the effective date. The issuer was advised that the short sale could not be
made before the registration statement becomes effective, because the shares underlying
the short sale are deemed to be sold at the time such sale is made. There would,
therefore, be a violation of Section 5 if the shares were effectively sold prior to the
effective date. [Nov. 26, 2008]”





     By returning this Notice and Questionnaire, the undersigned Selling Securityholder will be
deemed to be aware of the foregoing interpretation.



* * * * *




     By signing below, the Selling Securityholder acknowledges that it understands its obligation
to comply, and agrees that it will comply, with the provisions of the Exchange Act, particularly
Regulation M (or any successor rule or regulation).



     The Selling Securityholder hereby acknowledges its obligations under the Agreement to
indemnify and hold harmless the Company and certain other persons as set forth in the Agreement.



     In the event that the Selling Securityholder transfers all or any portion of the Registrable
Securities described in Item (3) above after the date on which such information is provided to the
Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the Agreement.



     By signing below, the Selling Securityholder consents to the disclosure of the information
contained herein in its answers to Items (1) through (9) above and the inclusion of such
information in the Shelf Registration Statement and related prospectus or prospectus supplement.
The Selling Securityholder understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and related prospectus or
prospectus supplement.



     In accordance with the Selling Securityholder’s obligation under Section 3(a) of the Agreement
to provide such information as may be required by law for inclusion in the Shelf Registration
Statement and related prospectus



 









 







or prospectus supplement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in effect and to provide
such additional information that the Company may reasonably request regarding such Selling
Securityholder and the intended method of distribution of Registrable Securities in order to comply
with the Securities Act. Except as otherwise provided in the Agreement, all notices hereunder and
pursuant to the Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:



	 	 	 	 	 
	 

	 	(i) To the Company:	 	 
	 
	 	 	 	 
	 

	 	 	 	GSI Commerce, Inc. 

935 First Avenue 

King of Prussia, PA 19406
	 
	 	 	 	 
	 

	 	 	 	Attention: Arthur H. Miller
	 
	 	 	 	 
	(ii)

	 	With a copy to:	 	 
	 
	 	 	 	 
	 

	 	 	 	Blank Rome LLP

One Logan Square

130 North 18th Street

Philadelphia, PA 19103
	 
	 	 	 	 
	 

	 	 	 	Attention: Francis E. Dehel






     Once this Notice and Questionnaire is executed by the Selling Securityholder and received by
the Company’s counsel, the terms of this Notice and Questionnaire, and the representations and
warranties contained herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder, as applicable, with respect to the Registrable Securities
beneficially owned by such Selling Securityholder and described in Item (3) above. This Notice and
Questionnaire shall be governed in all respects by the laws of the State of New York.



 









 





     IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.



	 	 	 	 	 
	Dated: __________________ 	 Beneficial Owner:

 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Exhibit 1




NOTICE OF TRANSFER




GSI Commerce, Inc.

935 First Avenue

King of Prussia, PA 19406




Attention: Arthur H. Miller





	 	 	 	Re: GSI Commerce, Inc. (the “Company”)





Dear Mr. Miller:




     Please be advised that      
                      
              has transferred         
             shares of the
Company’s common stock pursuant to an effective Registration Statement on Form S-3 (File No.
333-___) filed by the Company.



     We hereby certify that the prospectus and prospectus supplement delivery requirements, as
applicable, of the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the shares of common stock of
the Company is named as a selling securityholder in the prospectus or prospectus supplement, as
applicable, dated [insert date], or in amendments or supplements thereto, and that the aggregate
number of shares of common stock transferred is [a portion of] the shares of common stock listed in
such prospectus or prospectus supplement, as amended or supplemented, opposite such owner’s name.



Dated:




	 	 	 	 	 
	 	 	Very truly yours,



 	 
	 	 	(Name)

 	 
	 	By:  	 	 
	 	 	(Authorized Signature) 	 
	 	 	 	 



 









 






	 	 	 	 	 



Exhibit 2




PLAN OF DISTRIBUTION



The Company is registering the shares of common stock listed in the table appearing in the “Selling
Stockholders” section of this prospectus supplement to permit the resale of such common stock by
the selling securityholders. In connection with the Company’s acquisition of RCI, pursuant to the
terms of a registration rights agreement, the Company agreed to register the resale of the common
stock issued as initial merger consideration to the selling securityholders and to indemnify the
selling securityholders against certain losses, claims, and liabilities. The selling
securityholders also agreed to indemnify the Company for certain losses, claims, and liabilities.



The selling securityholders will act independently of the Company in making decisions with respect
to the timing, manner and size of each sale. The selling securityholders may, from time to time,
sell any or all of the shares beneficially owned by them and offered hereby directly or through one
or more underwriters, broker-dealers or agents. If the common stock is sold through underwriters or
broker-dealers, the selling securityholders will be responsible for underwriting discounts or
commissions or agent’s commissions. The common stock may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at
the time of sale, at prices related to prevailing market prices or at negotiated prices. The
shares may be sold at various times by one or more methods, including, but not limited to, the
following:





	 	•	 	on any national securities exchange or quotation service on which the securities may be
listed or quoted at the time of sale;
	 
	 	•	 	in the over-the-counter market;
	 
	 	•	 	directly to one or more purchasers, including institutional investors;
	 
	 	•	 	through the writing of options, whether such options are listed on an options exchange or
otherwise;
	 
	 	•	 	ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
	 
	 	•	 	block trades in which the broker-dealer will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate the transaction;
	 
	 	•	 	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
	 
	 	•	 	an exchange distribution in accordance with the rules of the applicable exchange;
	 
	 	•	 	privately negotiated transactions;
	 
	 	•	 	settlement of short sales entered into after the effective date of the registration
statement of which this prospectus supplement is a part;
	 
	 	•	 	broker-dealers may agree with the selling securityholders to sell a specified number of such
shares at a stipulated price per share or over a stipulated period of time;




 









 












	 	•	 	in private transactions or under Rule 144, or pursuant to other available exemptions from
the registration requirements, under the Securities Act rather than pursuant to this prospectus
supplement and accompanying base prospectus;
	 
	 	•	 	through the distribution of the shares by the selling securityholders to its members or
other equity holders;
	 
	 	•	 	a combination of any such methods of sale or distribution; and
	 
	 	•	 	any other method permitted pursuant to applicable law.




From time to time, the selling securityholders may also pledge, hypothecate or grant a security
interest in some or all of the shares they own. The pledgees, secured parties or persons to whom
the shares have been hypothecated will, upon foreclosure in the event of default, be deemed to be
selling securityholders and will be named in an additional prospectus supplement.



In effecting sales, the selling securityholders may engage brokers or dealers, and any brokers or
dealers so engaged by the selling securityholders may arrange for other brokers or dealers to
participate. Broker-dealers may receive commissions, concessions, discounts or other items
constituting compensation from the selling securityholder (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be negotiated.



Broker-dealers who acquire shares as principal may thereafter resell those shares from time to time
in transactions (which may involve block trades and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) in the over-the-counter
market, on any national securities exchange or quotation service, in privately negotiated
transactions or by a combination of these methods of sale, at fixed prices that may be changed, at
prevailing market prices at the time of sale, at prices related to prevailing market prices, at
varying prices determined at the time of sale or at negotiated prices.



The selling securityholders may enter into hedging transactions with broker-dealers and the
broker-dealers may engage in short sales of the shares in the course of hedging the positions they
assume. The selling securityholders may enter into option or other transactions with broker-dealers
that involve the delivery of the shares offered to the broker-dealers, who may then resell or
otherwise transfer those shares. The selling securityholders may also loan or pledge their shares
to a broker-dealer and, upon the default of the selling securityholders, the broker-dealer may sell
or otherwise transfer such shares, to the extent permitted by applicable law. If dealers are
utilized in the sale of shares of common stock, the names of the dealers and the terms of the
transaction will be set forth in a prospectus supplement, if required by law.



The selling securityholders may also sell shares of the common stock through agents designated by
them from time to time. The Company will name any agent involved in the offer or sale of such
shares and will list commissions payable by the selling securityholders to these agents in a
prospectus supplement, if required by law. Unless indicated in the prospectus supplement, the
agents will have agreed to use their reasonable best efforts to solicit purchases for the period of
their appointment.



The selling securityholders may indemnify underwriters, dealers or agents who participate in the
distribution of the shares of common stock against certain liabilities, including liabilities under
the


 









 







Securities Act and agree to contribute to payments which these underwriters, dealers or agents may
be required to make.



To our knowledge, there are currently no plans, arrangements or understandings between any selling
securityholders and any underwriter, broker-dealer or agent regarding the sale by the selling
securityholders of the shares of common stock.



Under the securities laws of some states, the shares may be sold in such states only through
registered or licensed brokers or dealers. In addition, in some states the shares may not be sold
unless such shares have been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.



The selling securityholders and any underwriters, broker-dealers or agents that participate in the
sale of the shares of common stock may be deemed to be “underwriters” within the meaning of Section
2(11) of the Securities Act, and any profit on the sale of the shares of common stock by the
selling securityholders and any discounts, commissions or concessions received by any such
underwriters, broker-dealers or agents may be deemed to be underwriting discounts and commissions
under the Securities Act. If a selling securityholder is deemed to be an “underwriter” within the
meaning of Section 2(11) of the Securities Act, such selling securityholder will be subject to the
prospectus delivery requirements of the Securities Act and may be subject to statutory liabilities
under the U.S. securities laws. The selling securityholders have acknowledged that they understand
their obligation to comply with the provisions of the Exchange Act, including Regulation M, as
applicable.