exv10w2



 







EXHIBIT 10.2




REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (the “Agreement”) is made and entered into as of this
1st day of June, 2006 by and among PFSweb, Inc., a Delaware corporation (the “Company”),
and the “Investors” named in that certain Purchase Agreement by and among the Company and the
Investors (the “Purchase Agreement”).



     The parties hereby agree as follows:



     1. Certain Definitions.



     As used in this Agreement, the following terms shall have the following meanings:



     “Affiliate” means, with respect to any person, any other person which directly or
indirectly controls, is controlled by, or is under common control with, such person.



     “Business Day” means a day, other than a Saturday or Sunday or federal legal holiday,
on which banks in New York City are open for the general transaction of business.



     “Common Stock” shall mean the Company’s common stock, par value $0.001 per share, and
any securities into which such shares may hereinafter be reclassified.



     “Investors” shall mean the Investors identified in the Purchase Agreement and any
Affiliate or permitted transferee of any Investor who is a subsequent holder of any Registrable
Securities.



     “Prospectus” shall mean the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.



     “Register,” “registered” and “registration” refer to a registration
made by preparing and filing a Registration Statement or similar document in compliance with the
1933 Act (as defined below), and the declaration or ordering of effectiveness of such Registration
Statement or document.



     “Registrable Securities” shall mean (i) the Shares and (ii) any other securities
issued or issuable with respect to or in exchange for Registrable Securities; provided, that, a
security shall cease to be a Registrable Security upon (A) sale pursuant to a Registration
Statement or Rule 144 under the 1933 Act, or (B) such security becoming eligible for sale by the
Investors pursuant to Rule 144(k).



     “Registration Statement” shall mean any registration statement of the Company filed
under the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by reference in such
Registration Statement.



     “Required Investors” means the Investors holding a majority of the Registrable
Securities.



 









 





     “SEC” means the U.S. Securities and Exchange Commission.



     “Shares” means the shares of Common Stock issued pursuant to the Purchase Agreement.



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



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



     2. Registration.



               (a) Registration Statement. Promptly following the closing of the purchase and sale
of the securities contemplated by the Purchase Agreement (the “Closing Date”) but no later than the
first Business Day following the 45th day after the Closing Date (the “Filing
Deadline”), the Company shall prepare and file with the SEC one Registration Statement on Form S-3
(or, if Form S-3 is not then available to the Company, on such form of registration statement as is
then available to effect a registration for resale of the Registrable Securities, subject to the
Required Investors’ consent), covering the resale of the Registrable Securities. Subject to any
SEC comments, such Registration Statement shall include the plan of distribution attached hereto as
Exhibit A. Such Registration Statement also shall cover, to the extent allowable under the
1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock dividends or similar
transactions with respect to the Registrable Securities. Such Registration Statement shall not
include any shares of Common Stock or other securities for the account of any other holder without
the prior written consent of the Required Investors. The Registration Statement (and each
amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall
be provided in accordance with Section 3(c) to the Investors and their counsel to the extent
identified to the Company prior to its filing or other submission. If a Registration Statement
covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline,
the Company will make pro rata payments to each Investor, as liquidated damages and not as a
penalty, in an amount equal to 1.5% of the purchase price paid under the Purchase Agreement by such
Investor for each 30-day period or pro rata for any portion thereof following the Filing Deadline
for which no Registration Statement is filed with respect to the Registrable Securities. Such
payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not
affect the right of the Investors to seek injunctive relief. Such payments shall be made to each
Investor in cash.



               (b) Expenses. The Company will pay all expenses associated with each registration,
including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable state securities
laws, listing fees, fees and expenses of one counsel to the Investors and the Investors’ reasonable
out-of-pocket expenses in connection with the registration, but excluding discounts, commissions,
fees of underwriters, selling brokers, dealer managers or similar securities industry professionals
with respect to the Registrable Securities being sold.



               (c) Effectiveness.



-2-









 





               (i) The Company shall use commercially reasonable efforts to have the Registration Statement
declared effective as soon as practicable. The Company shall notify the Investors by facsimile or
e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any
Registration Statement is declared effective and shall simultaneously provide the Investors with
copies of any related Prospectus to be used in connection with the sale or other disposition of the
securities covered thereby. If (A) a Registration Statement covering the Registrable Securities is
not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC
shall have informed the Company that no review of the Registration Statement will be made or that
the SEC has no further comments on the Registration Statement or (ii) the first Business Day
following the 105th day after the Closing Date or (B) after a Registration Statement has
been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement
for any reason (including without limitation by reason of a stop order, or the Company’s failure to
update the Registration Statement), but excluding the inability of any Investor to sell the
Registrable Securities covered thereby due to market conditions and excluding, with respect to any
particular Investor, any failure resulting from Investor’s failure to provide timely and accurate
information to the Company upon its request, and except as excused pursuant to subparagraph (ii)
below, then the Company will make pro rata payments to each Investor, as liquidated damages and not
as a penalty, in an amount equal to 1.5% of the purchase price paid under the Purchase Agreement by
such Investor for each 30-day period or pro rata for any portion thereof following the date by
which such Registration Statement should have been effective (the “Blackout Period”). Such
payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not
affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated
damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last
day of each month following the commencement of the Blackout Period until the termination of the
Blackout Period. Such payments shall be made to each Investor in cash.



               (ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five
(45) days in any twelve (12) month period, the Company may delay the disclosure of material
non-public information concerning the Company, by suspending the use of any Prospectus included in
any registration contemplated by this Section containing such information, the disclosure of which
at the time is not, in the good faith opinion of the Company, in the best interests of the Company
(an “Allowed Delay”); provided, that the Company shall promptly (a) notify the Investors in writing
of the existence of (but in no event, without the prior written consent of an Investor, shall the
Company disclose to such Investor any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales
under the Registration Statement until the end of the Allowed Delay and (c) use commercially
reasonable efforts to terminate an Allowed Delay as promptly as practicable.



               (d) Limitation on Liquidated Damages. Notwithstanding the other provisions of this
Section 2, in no event shall the Company be liable for liquidated damages in excess of an aggregate
of 24% of the aggregate purchase price paid by the Investors pursuant to the Purchase Agreement.
The Company shall not be obligated to pay liquidated damages to more than one Investor (or its
assignee or transferee) with respect to the same Registrable Securities for the same violation of
the terms hereof.



-3-









 





     3. Company Obligations. The Company will use commercially reasonable efforts to
effect the registration of the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as possible:



               (a) use commercially reasonable efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period that will terminate upon the earlier of
(i) the date on which all Registrable Securities covered by such Registration Statement as amended
from time to time, have been sold, and (ii) the date on which all Registrable Securities covered by
such Registration Statement may be sold pursuant to Rule 144(k) (the “Effectiveness Period”). The
Company shall advise the Investors when it believes that Rule 144(k) applies to all of the
Registrable Securities;



               (b) prepare and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the Registration Statement
effective for the Effectiveness Period and to comply with the provisions of the 1933 Act and the
1934 Act with respect to the distribution of all of the Registrable Securities covered thereby;



               (c) provide copies to and permit counsel designated by the Investors to the extent identified
to the Company to review each Registration Statement and all amendments and supplements thereto no
fewer than three (3) Business Days prior to their filing with the SEC and not file any document to
which such counsel reasonably objects;



               (d) furnish to the Investors and their legal counsel to the extent identified to the Company
(i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received
by the Company (but not later than two (2) Business Days after the filing date, receipt date or
sending date, as the case may be) one (1) copy of any Registration Statement and any amendment
thereto, each preliminary prospectus and Prospectus and each amendment or supplement thereto, and
each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each
item of correspondence from the SEC or the staff of the SEC, in each case relating to such
Registration Statement (other than any portion of any thereof which contains information for which
the Company has sought confidential treatment), and (ii) such number of copies of a Prospectus,
including a preliminary prospectus, and all amendments and supplements thereto and such other
documents as each Investor may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Investor that are covered by the related Registration
Statement;



               (e) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;



               (f) prior to any public offering of Registrable Securities, use commercially reasonable
efforts to register or qualify or cooperate with the Investors and their counsel to the extent
identified to the Company in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested
by the Investors and do any and all other commercially



-4-









 




reasonable acts or things necessary or advisable to enable the distribution in such
jurisdictions of the Registrable Securities covered by the Registration Statement; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(f), (ii) subject itself to general taxation in any jurisdiction
where it would not otherwise be so subject but for this Section 3(f), or (iii) file a general
consent to service of process in any such jurisdiction;




               (g) use commercially reasonable efforts to cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer quotation system or
other market on which similar securities issued by the Company are then listed;



               (h) immediately notify the Investors, at any time prior to the end of the Effectiveness
Period, upon discovery that, or upon the happening of any event as a result of which, the
Prospectus includes 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 then existing, and promptly prepare, file with the SEC and furnish to such
Investor a supplement to or an amendment of such Prospectus as may be necessary so that such
Prospectus shall not include 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 not misleading in
light of the circumstances then existing; and



               (i) otherwise use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, including, without limitation, Rule 172
under the 1933 Act, file any final Prospectus, including any supplement or amendment thereof, with
the SEC pursuant to Rule 424 under the 1933 Act, promptly inform the Investors in writing if, at
any time during the Effectiveness Period, the Company does not satisfy the conditions specified in
Rule 172 and, as a result thereof, the Investors are required to deliver a Prospectus in connection
with any disposition of Registrable Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities hereunder; and make
available to its security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of at least twelve
(12) months, beginning after the effective date of each Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act, including Rule 158
promulgated thereunder (for the purpose of this subsection 3(i), “Availability Date” means the 45th
day following the end of the fourth fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the
Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal
quarter).



               (j) With a view to making available to the Investors the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any time permit the
Investors to sell the Registrable Securities to the public without registration, the Company
covenants and agrees to: (i) make and keep public information available, as those terms are
understood and defined in Rule 144, until the earlier of (A) six months after such date as all of
the Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of



-5-









 




similar effect or (B) such date as all of the Registrable Securities shall have been resold;
(ii) file with the SEC in a timely manner all reports and other documents required of the Company
under the 1934 Act; and (iii) furnish to each Investor upon request, as long as such Investor owns
any Registrable Securities, (A) a written statement by the Company that it has complied with the
reporting requirements of the 1934 Act, (B) a copy of the Company’s most recent Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably
requested in order to avail such Investor of any rule or regulation of the SEC that permits the
selling of any such Registrable Securities without registration.




     4. Due Diligence Review; Information. The Company shall make available, during normal
business hours, for inspection and review by the Investors, advisors to and representatives of the
Investors (who may or may not be affiliated with the Investors and who are reasonably acceptable to
the Company), all financial and other records, all SEC Filings (as defined in the Purchase
Agreement) and other filings with the SEC, and all other corporate documents and properties of the
Company as may be reasonably necessary for the purpose of such review, and cause the Company’s
officers, directors and employees, within a reasonable time period, to supply all such information
reasonably requested by the Investors or any such representative, advisor or underwriter in
connection with such Registration Statement (including, without limitation, in response to all
questions and other inquiries reasonably made or submitted by any of them), prior to and from time
to time after the filing and effectiveness of the Registration Statement for the sole purpose of
enabling the Investors and such representatives, advisors and underwriters and their respective
accountants and attorneys to conduct initial and ongoing due diligence with respect to the Company
and the accuracy of such Registration Statement. As a condition to such inspection and review, the
Company may request any recipient of such information to execute and deliver a customary
confidentiality agreement.



          The Company shall not disclose material nonpublic information to the Investors, or to advisors
to or representatives of the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides the Investors,
such advisors and representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review and any Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect thereto.




     5. Obligations of the Investors.



               (a) Concurrently herewith, each Investor will complete and deliver to the Company the
Registration Statement Questionnaire in the form attached hereto as Exhibit B and otherwise
from time to time shall furnish in writing to the Company such information regarding itself, the
Registrable Securities held by it (including information regarding any Person who has the right to
vote or dispose of such Registrable Securities) and the intended method of disposition of the
Registrable Securities held by it, as shall be reasonably required to effect the registration of
such Registrable Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least five (5) Business Days prior to the first
anticipated filing date of any Registration Statement, the Company shall notify each Investor of
the information the Company requires from such Investor if such Investor elects to have any of the
Registrable Securities included in the Registration



-6-









 







Statement. An Investor shall provide such information to the Company at least two (2)
Business Days prior to the first anticipated filing date of such Registration Statement if such
Investor elects to have any of the Registrable Securities included in the Registration Statement.



               (b) Each Investor, by its acceptance of the Registrable Securities agrees to cooperate with
the Company as reasonably requested by the Company in connection with the preparation and filing of
a Registration Statement hereunder, unless such Investor has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.



               (c) Each Investor agrees that, upon receipt of any notice from the Company of either (i) the
commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an event
pursuant to Section 3(h) hereof, such Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such Registrable Securities,
until the Investor is advised by the Company that such dispositions may again be made.



     6. Indemnification.



               (a) Indemnification by the Company. The Company will indemnify and hold harmless each
Investor and its officers, directors, members, employees and agents, successors and assigns, and
each other person, if any, who controls such Investor within the meaning of the 1933 Act, against
any losses, claims, damages or liabilities, joint or several, to which they may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, any preliminary Prospectus
or final Prospectus, or any amendment or supplement thereof; (ii) any blue sky application or other
document executed by the Company specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of
the Registrable Securities under the securities laws thereof (any such application, document or
information herein called a "Blue Sky Application"); (iii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading; (iv) any violation by the Company or its agents of any rule or regulation
promulgated under the 1933 Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration; or (v) any failure to
register or qualify the Registrable Securities included in any such Registration in any state where
the Company or its agents has affirmatively undertaken or agreed in writing that the Company will
undertake such registration or qualification on an Investor’s behalf and will reimburse such
Investor, and each such officer, director or member and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished by such Investor or
any such controlling person in writing specifically for use in such Registration Statement or
Prospectus.



-7-









 





               (b) Indemnification by the Investors. Each Investor agrees, severally but not
jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees, stockholders and each person who controls the Company (within the
meaning of the 1933 Act) against any losses, claims, damages, liabilities and expense (including
reasonable attorney fees) resulting from any untrue statement of a material fact or any omission of
a material fact required to be stated in the Registration Statement or Prospectus or preliminary
Prospectus or amendment or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by such Investor to the Company specifically for
inclusion in such Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of an Investor be greater in amount than the dollar amount of the
proceeds (net of all expense paid by such Investor in connection with any claim relating to this
Section 6 and the amount of any damages such Investor has otherwise been required to pay by reason
of such untrue statement or omission) received by such Investor upon the sale of the Registrable
Securities included in the Registration Statement giving rise to such indemnification obligation.



               (c) Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
or (b) the indemnifying party shall have failed to assume the defense of such claim and employ
counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such
person, based upon written advice of its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which case, if the person notifies the
indemnifying party in writing that such person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such person); and provided, further, that the failure of
any indemnified party to give notice as provided herein shall not relieve the indemnifying party of
its obligations hereunder, except to the extent that such failure to give notice shall materially
adversely affect the indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any proceeding in the same
jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or litigation.



               (d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless,
other than as expressly specified therein, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of the



-8-









 







indemnified party and the indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not guilty of such
fraudulent misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all
expenses paid by such holder in connection with any claim relating to this Section 6 and the amount
of any damages such holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission) received by it upon the sale of the Registrable
Securities giving rise to such contribution obligation.



     7. Miscellaneous.



               (a) Amendments and Waivers. This Agreement may be amended only by a writing signed by
the Company and the Required Investors, which shall be binding on all of the Investors. The
Company may take any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the Required Investors.



               (b) Notices. All notices and other communications provided for or permitted hereunder
shall be made as set forth in Section 9.4 of the Purchase Agreement.



               (c) Assignments and Transfers by Investors. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Investors and their respective successors and assigns.
An Investor may transfer or assign, in whole or from time to time in part, to one or more persons
its rights hereunder in connection with the transfer of Registrable Securities by such Investor to
such person, provided that such Investor complies with all laws applicable thereto and provides
written notice of assignment to the Company promptly after such assignment is effected.



               (d) Assignments and Transfers by the Company. This Agreement may not be assigned by
the Company (whether by operation of law or otherwise) without the prior written consent of the
Required Investors, provided, however, that the Company may assign its rights and delegate its
duties hereunder to any surviving or successor corporation in connection with a merger or
consolidation of the Company with another corporation, or a sale, transfer or other disposition of
all or substantially all of the Company’s assets to another corporation, without the prior written
consent of the Required Investors, after notice duly given by the Company to each Investor.



               (e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement.



               (f) Counterparts; Faxes. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall



-9-









 







constitute one and the same instrument. This Agreement may also be executed via facsimile,
which shall be deemed an original.



               (g) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.



               (h) Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any respect.



               (i) Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.



               (j) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the parties with respect to
such subject matter.



               (k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York
without regard to the choice of law principles thereof. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the
transactions contemplated hereby. Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or proceeding and to the
laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of
venue of any such suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.



-10-









 





          IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first above written.




	 	 	 	 	 	 	 
	The Company:	 	PFSWEB, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Thomas J. Madden
 

Thomas J. Madden
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






-11-









 





	 	 	 	 	 	 	 
	The Investors:	 	SPECIAL SITUATIONS FUND III QP, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Austin W. Marxe
 

Austin W. Marxe
	 	 
	 

	 	Title:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	SPECIAL SITUATIONS FUND III, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Austin W. Marxe
 

Austin W. Marxe
	 	 
	 

	 	Title:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	SPECIAL SITUATIONS CAYMAN FUND, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Austin W. Marxe
 

Austin W. Marxe
	 	 
	 

	 	Title:
	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 	 	SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Austin W. Marxe
 

Austin W. Marxe
	 	 
	 

	 	Title:
	 	General Partner	 	 






-12-









 





Exhibit A




Plan of Distribution




     The selling stockholders, which as used herein includes donees, pledgees, transferees or other
successors-in-interest selling shares of common stock or interests in shares of common stock
received after the date of this prospectus from a selling stockholder as a gift, pledge,
partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise
dispose of any or all of their shares of common stock or interests in shares of common stock on any
stock exchange, market or trading facility on which the shares are traded or in private
transactions. These dispositions may be at fixed prices, at prevailing market prices at the time
of sale, at prices related to the prevailing market price, at varying prices determined at the time
of sale, or at negotiated prices.



     The selling stockholders may use any one or more of the following methods when disposing of
shares or interests therein:



     – 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;




     – short sales effected after the date the registration statement of which this Prospectus is a
part is declared effective by the SEC;



     – through the writing or settlement of options or other hedging transactions, whether through
an options exchange or otherwise;



     – broker-dealers may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per share; or



     – a combination of any such methods of sale.



     The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of common stock,
from time to time, under this prospectus, or under an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest as



-13-









 







selling stockholders under this prospectus. The selling stockholders also may transfer the shares
of common stock in other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this prospectus.



     In connection with the sale of our common stock or interests therein, the selling stockholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the common stock in the course of hedging the positions they
assume. The selling stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common stock to broker-dealers
that in turn may sell these securities. The selling stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions or the creation of one or
more derivative securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).



     The aggregate proceeds to the selling stockholders from the sale of the common stock offered
by them will be the purchase price of the common stock less discounts or commissions, if any. Each
of the selling stockholders reserves the right to accept and, together with their agents from time
to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly
or through agents. We will not receive any of the proceeds from this offering.



     The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that they meet
the criteria and conform to the requirements of that rule.



     The selling stockholders and any underwriters, broker-dealers or agents that participate in
the sale of the common stock or interests therein may be “underwriters” within the meaning of
Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn
on any resale of the shares may be underwriting discounts and commissions under the Securities Act.
Selling stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities
Act will be subject to the prospectus delivery requirements of the Securities Act.



     Each selling stockholder has informed the Company that it is not a registered broker-dealer
and does not have any written or oral agreement or understanding, directly or indirectly, with any
person to distribute the Common Stock.



     To the extent required, the shares of our common stock to be sold, the names of the selling
stockholders, the respective purchase prices and public offering prices, the names of any agents,
dealer or underwriter, any applicable commissions or discounts with respect to a particular offer
will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.



     In order to comply with the securities laws of some states, if applicable, the common stock
may be sold in these jurisdictions only through registered or licensed brokers or dealers. In



-14-









 







addition, in some states the common stock may not be sold unless it has been registered or
qualified for sale or an exemption from registration or qualification requirements is available and
is complied with.



     We have advised the selling stockholders that the anti-manipulation rules of Regulation M
under the Exchange Act may apply to sales of shares in the market and to the activities of the
selling stockholders and their affiliates. In addition, to the extent applicable we will make
copies of this prospectus (as it may be supplemented or amended from time to time) available to the
selling stockholders for the purpose of satisfying the prospectus delivery requirements of the
Securities Act. The selling stockholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities, including liabilities
arising under the Securities Act.



     We have agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to the registration of the
shares offered by this prospectus.



     We have agreed with the selling stockholders to keep the registration statement of which this
prospectus constitutes a part effective until the earlier of (1) such time as all of the shares
covered by this prospectus have been disposed of pursuant to and in accordance with the
registration statement or (2) the date on which the shares may be sold pursuant to Rule 144(k) of
the Securities Act.



-15-









 





Exhibit B




REGISTRATION STATEMENT QUESTIONNAIRE




     In connection with the preparation of the Registration Statement, please provide us with the
information set forth below. You agree that the Company may present this Questionnaire to such
parties as it deems appropriate to establish the availability of exemptions from registration under
state and federal securities laws.


SECTION 1. Pursuant to the “Selling Stockholder” section of the Registration Statement, please
state your or your organization’s name exactly as it should appear in the Registration Statement:



SECTION 2. Please provide the number of shares that you or your organization will beneficially own
immediately after Closing, including those Registrable Securities purchased by you or your
organization pursuant to the Purchase Agreement and those shares of Common Stock (including rights
or options to acquire shares of Common Stock) purchased by you or your organization through other
transactions:



SECTION 3. Have you or your organization had any position, office or other material relationship
within the past three years with the Company or its affiliates?



o Yes o No



If “yes,” please indicate the nature of any such relationships below:



SECTION 4. Are you (b) an NASD Member (see definition), (c) a Controlling (see definition)
shareholder of an NASD Member, (d) a Person Associated with a Member of the NASD (see definition),
or (e) an Underwriter or a Related Person (see definition) with respect to the proposed offering;
or (b) do you own any shares or other securities of any NASD Member not purchased in the open
market; or (c) have you made any outstanding subordinated loans to any NASD Member?



o Yes o No



If “yes,” please describe below:




-16-









 








DEFINITIONS



NASD Member. The term “NASD member” means either any broker or dealer admitted to membership in the
National Association of Securities Dealers, Inc. (“NASD”). (NASD Manual, By-laws Article I,
Definitions)



Control. The term “control” (including the terms “controlling,” “controlled by” and “under common
control with”) means the possession, direct or indirect, of the power, either individually or with
others, to direct or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise. (Rule 405 under the
Securities Act of 1933, as amended)



Person Associated with a Member of the NASD. The term “person associated with a member of the NASD”
means every sole proprietor, partner, officer, director, branch manager or executive representative
of any NASD Member, or any natural person occupying a similar status or performing similar
functions, or any natural person engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by a NASD Member, whether or not such person is
registered or exempt from registration with the NASD pursuant to its bylaws. (NASD Manual, By-laws
Article I, Definitions)



Underwriter or a Related Person. The term “underwriter or a related person” means, with respect to
a proposed offering, underwriters, underwriters’ counsel, financial consultants and advisors,
finders, members of the selling or distribution group, and any and all other persons associated
with or related to any of such persons. (NASD Interpretation)





-17-