ALLOCATION AGREEMENT
THIS ALLOCATION AGREEMENT (this "Agreement") is made on this 29th day of
September, 1999, by and among EXE Technologies, Inc., a Delaware corporation
(the "Company"), and the purchasers of the Company's Series D Convertible
Preferred Stock ("Series D Preferred Stock") whose names appear on the signature
pages hereof (the "Purchasers").
PRELIMINARY STATEMENTS
A. The Company and the Purchasers are parties to that certain Series
D Preferred Stock Purchase Agreement dated of even date herewith (the "Stock
Purchase Agreement").
B. In connection with the Company's issuance of Series D Preferred
Stock pursuant to the Stock Purchase Agreement, the Company has agreed to enter
into this Agreement in order to further induce the Purchasers to enter into the
Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
conditions contained herein, the Company and each of the Purchasers hereby agree
as follows:
1. ALLOCATION OF SHARES TO PURCHASERS.
In connection with the first offering of the Company's shares of common
stock in a firm commitment underwritten public offering on a Registration
Statement on Form S-1, if any (the "Offering"), the Company shall use its
reasonable best efforts to cause the managing underwriters of such Offering to
offer to the Purchasers the right to purchase, at the offering price per share
at which such shares of common stock are first offered to the public (the
"Offering Price") and upon the same terms and conditions upon which such
securities are offered to the public, a number of shares in such Offering
determined pursuant to the terms of this Agreement. Such requirement shall be
subject to the consent of the managing underwriters (which consent shall not be
unreasonably withheld) after taking into account and giving priority to the
allocation of up to five percent (5%) of the shares offered in the Offering to
"friends and family" and employees of the Company. Subject to such consent, the
number of shares that shall be subject to the Purchasers' rights herein (the
"Allocation Shares") shall be determined by dividing (a) $10,000,000 by (b) the
price per share equal to the midpoint of the filing range on the cover of the
Company's red xxxxxxx preliminary prospectus first distributed to investors in
connection with the Offering (the "Initial Allocation Price"); provided,
however, that the aggregate number of Allocation Shares shall not exceed ten
percent (10%) of the shares of common stock offered to the public in the
Offering.
2. INITIAL ALLOCATION NOTICE.
Promptly after the Company determines the Initial Allocation Price, the
Company shall provide a written notice to each Purchaser (the "Initial
Allocation Notice"), which notice shall indicate (a) the total number of
Allocation Shares; (b) the number of Allocation Shares that each Purchaser
initially is entitled to purchase (each Purchaser's "Pro-Rata Portion"); and (c)
the Initial Allocation Price. A particular Purchaser's Pro-Rata Portion shall be
determined by multiplying the number of Allocation Shares by a fraction, the
numerator of which shall be the number of shares of Series D Preferred Stock
held by a particular Purchaser and the denominator of which shall be the total
number of outstanding shares of Series D Preferred Stock then held by all
Purchasers.
3. INITIAL INTEREST NOTICE
As promptly after receipt of the Initial Allocation Notice as possible,
taking into account such time deadlines as the managing underwriters shall
reasonably impose under the circumstances, each Purchaser that is interested in
purchasing Allocation Shares shall provide to the Company a written notice
stating such Purchaser's interest, which notice shall be non-binding and shall
indicate: (a) the amount of such Purchaser's Pro-Rata Portion that such
Purchaser is interested in purchasing; (b) whether such Purchaser is interested
in purchasing shares in excess of such Purchaser's Pro-Rata Portion; and (c) if
such Purchaser is interested in purchasing shares in excess of such Purchaser's
Pro-Rata Portion, then the aggregate number of Allocation Shares the Purchaser
is interested in purchasing.
4. FINAL ALLOCATION NOTICE.
Promptly after the Company receives notice from the U.S. Securities and
Exchange Commission that the Registration Statement filed in connection with the
Offering is effective, the Company shall provide notice to each Purchaser (the
"Final Allocation Notice"), which notice shall indicate: (a) the total number of
Allocation Shares; (b) the Purchaser's Pro Rata Portion; and (c) the Offering
Price, or if the Offering Price has not yet been determined, the price or range
of prices that the Company reasonably believes will be the Offering Price
("Expected Price(s)").
5. ELECTION TO PURCHASE.
As promptly as possible after receipt of the Final Allocation Notice,
taking into account such time deadlines as the managing underwriters shall
impose under the circumstances, each Purchaser that desires to purchase
Allocation Shares shall provide notice to the Company of such Purchaser's
election to purchase all or part of its respective Pro-Rata Portion (the
"Purchase Election"), which notice shall indicate (a) the amount of such
Purchaser's Pro-Rata Portion that such Purchaser is electing to purchase at the
Offering Price or at each particular Expected Price, as the case may be; (b) if
such Purchaser has elected to purchase all of such Purchaser's Pro Rata
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Portion at the Offering Price or at any particular Expected Price, as the case
may be, then whether such Purchaser is also electing to purchase shares in
excess of such Purchaser's Pro-Rata Portion, if such shares become available at
the Offering Price or at each such Expected Price, as the case may be; and (c)
if such Purchaser is electing to purchase shares in excess of such Purchaser's
Pro-Rata Portion, then the aggregate number of Allocation Shares the Purchaser
is electing to purchase in excess of the Purchaser's Pro-Rata Portion at the
Offering Price or at each such Expected Price, as the case may be. Shares
available for purchase in excess of a Purchaser's Pro-Rata Portion are referred
to herein as "Additional Allocation Shares."
6. ADDITIONAL ALLOCATION SHARES PURCHASE RIGHT.
Subject to the managing underwriter's consent as set forth in Section 1
hereof, each Purchaser that elects to purchase Allocation Shares at the Offering
Price, or at an Expected Price that is greater than or equal to the Offering
Price (or in the event the Offering Price is greater than the highest Expected
Price, each Purchaser that elected to purchase Allocation Shares at the highest
Expected Price), shall have the right to purchase that number of shares equal to
(a) the portion of such Purchaser's Pro-Rata Portion that such Purchaser elected
to purchase in the Purchase Election, plus (b) for each Purchaser that elected
to purchase its entire Pro-Rata Portion (an "Allocation Purchaser"), such
Allocation Purchaser's Pro-Rata Portion of the Additional Allocation Shares, up
to the aggregate number of shares indicated in the Purchase Election. For
purposes of determining the respective Pro-Rata Portion of the Additional
Allocation Shares available for purchase by each Allocation Purchaser, the
number of Additional Allocation Shares shall be multiplied by a fraction, the
numerator of which shall be the number of shares of Series D Preferred Stock
held by a particular Allocation Purchaser who shall have elected to purchase
Additional Allocation Shares, and the denominator of which shall be the total
number of outstanding shares of Series D Preferred Stock held by all of the
Allocation Purchasers who shall have elected to purchase the Additional
Allocation Shares.
7. MISCELLANEOUS.
(a) Any notice required or permitted to be given to a party
pursuant to the provisions of this Agreement shall be in writing and shall be
made by personal delivery, telecopier or overnight courier, and shall be
properly addressed to the party to be notified as set forth on the signature
page hereof or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties hereto; provided, however,
that the notices contemplated in Sections 2, 3, 4, 5 and 6 hereof may be made
by telephone or electronic mail message confirmed by telecopier, as promptly
as possible under the circumstances.
(b) This Agreement and the rights and obligations of the
parties hereunder shall inure to the benefit of, and be binding upon, their
respective successors, assigns and legal representatives.
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(c) In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
(d) Any amendment, modification or waiver of any provision of
this Agreement shall be effective if in writing and approved by the Company and
the holder or holders of at least a majority of the shares of Series D Preferred
Stock held by Purchasers.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflicts of laws principles of any jurisdiction.
(f) This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original; and all such counterparts together shall constitute one and the same
instrument.
(g) The Purchaser's right to purchase his or its percentage of
the Allocation Shares is subject to and shall be limited by: (i) compliance with
all federal and state securities laws (including Rule 134 and Regulation M
promulgated under the Securities Act of 1933, as amended); (ii) compliance with
all rules of the National Association of Securities Dealers (including the Rules
of Fair Practice regarding "hot issues" and "free-riding"); and (iii) compliance
with the rules of NASDAQ NMS (or the appropriate exchange, if applicable).
(h) Subject to all other provisions of this Agreement, each
Purchaser shall have the right to apportion its participation herein among any
of its partners, members or affiliates.
(i) 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. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
in the Stock Purchase Agreement. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
(j) In the event any party notifies the other parties to this
Agreement in writing that legal or regulatory restrictions prohibit the
transactions contemplated by this Agreement, the parties agree to use reasonable
efforts to effect mutually satisfactory arrangements in the alternative, in
light of and consistent with such legal or regulatory restrictions.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
EXE TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------------------
Name: XXXXXXX X. XXXX
----------------------------------------
Title: PRESIDENT
----------------------------------------
PURCHASERS:
TCV III (GP)
a Delaware General Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
TCV III, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
TCV III (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
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TCV III STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: Chief Financial Officer
------------------------------------
GENERAL ATLANTIC PARTNERS 57, L.P.
By: General Atlantic Partners, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Title: A Managing Member
-----------------------------------------
Address: c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: A General Partner
-----------------------------------------
Address: c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
MSD PORTFOLIO L.P. - INVESTMENTS
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Print Name: Xxxxx Xxxxxxx
-------------------------------------------
Title: Managing Partner
-------------------------------------------
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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