CLASS B COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS BEEN, AND THE SHARES OF CLASS B COMMON STOCK WHICH MAY BE
PURCHASED PURSUANT TO THE EXERCISE OF THIS WARRANT (THE "SHARES") WILL BE,
ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN
CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR THE SHARES
(TOGETHER, THE "SECURITIES") HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE COMPANY AND ITS COUNSEL THAT SUCH DISPOSITION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT AND OF
ANY APPLICABLE STATE SECURITIES LAWS.
EXE TECHNOLOGIES, INC.
WARRANT TO PURCHASE 375,000 SHARES OF CLASS B COMMON STOCK
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THIS CERTIFIES THAT, for value received, 52nd Street Associates, Inc.,
a Delaware corporation (the "HOLDER"), is entitled to subscribe for and purchase
from EXE TECHNOLOGIES, INC., a Delaware corporation (the "COMPANY"), 375,000
shares (as adjusted pursuant to Section 3 hereof) of the fully paid and
nonassessable Class B Common Stock, $0.01 par value (the "SHARES"), of the
Company at the price of $4.00 per share (the "EXERCISE Price") (as adjusted
pursuant to Section 3 hereof), subject to the provisions and upon the terms and
conditions hereinafter set forth.
1. METHOD OF EXERCISE; PAYMENT.
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(a) EXERCISE PERIOD. The purchase rights represented by this
Warrant may be exercised by the Holder during the term of this Warrant (as set
forth in Section 12 hereof), in whole or in part, at any time after the date of
issuance by the surrender of this Warrant (with the notice of exercise form (the
"NOTICE OF EXERCISE") attached hereto as EXHIBIT A duly executed) at the
principal office of the Company, pursuant to the following schedule: this
Warrant may be exercised in whole or in part at any time on or after November
19, 1999.
(b) CASH EXERCISE. This Warrant may be exercised by the
payment to the Company of an amount equal to the Exercise Price multiplied by
the number of the Shares being purchased, at the election of the Holder, by wire
transfer or certified check payable to the order of the Company. Subject to
Section 11 hereof, the person or persons in whose name(s) any certificate(s)
representing Shares shall be issuable upon exercise of this Warrant shall be
deemed to have become the holder(s) of record of, and shall be treated for all
purposes as the record holder(s) of, the Shares represented thereby (and such
Shares shall be deemed to have been issued) immediately prior to the close of
business on the date or dates upon which this Warrant is exercised.
(c) NET ISSUE EXERCISE.
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i) In lieu of exercising this Warrant pursuant to
Section 1(b) above, the Holder may elect to receive a number of Shares equal to
the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with Notice of Exercise indicating the method of exercise. In such
event, the Company shall issue to the Holder a number of Shares computed using
the following formula:
X = Y (A-B)
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A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares subject to this Warrant (or the
portion thereof being canceled).
A = the fair market value of one share of the Company's
Common Stock.
B = the Exercise Price (as adjusted to the date of such
calculation).
(d) FAIR MARKET VALUE. For purposes of this Section 1, the
fair market value of the Company's Common Stock shall mean:
i) The average of the closing bid and asked prices of
the Company's Common Stock quoted in the over-the-counter market summary or the
closing price quoted on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of THE WALL STREET
JOURNAL for the ten trading days prior to the date of determination of fair
market value; or
ii) If the Company's Common Stock is not traded
over-the-counter or on an exchange, fair market value of the Class B Common
Stock per share shall be the price per share as determined reasonably and in
good faith by the Company's Board of Directors. Receipt and formal
acknowledgment by a duly authorized representative of the Holder of the Shares
issued upon exercise of this Warrant by the Holder shall be conclusively deemed
to be an acknowledgment and acceptance of any such fair market value
determination by the Company's Board of Directors as the final and binding
determination of such value for purposes of this Warrant.
(e) STOCKHOLDERS AGREEMENT. Prior to the Company effecting any
exercise of this Warrant, the Holder shall execute a Stockholders Agreement
("Stockholders Agreement") as mutually agreed by the parties based upon the
sample attached in Exhibit B hereto, which the Company represents is consistent
with the Stockholders Agreements signed by other minority stockholders in the
Company.
(f) STOCK CERTIFICATES. In the event of any exercise of the
rights represented by this Warrant, certificates for the shares of Class B
Common Stock so purchased shall be delivered to the Holder within a reasonable
time and, unless this Warrant has been fully exercised or has expired, a new
Warrant representing the shares with respect to which this Warrant shall not
have been exercised shall also be issued to the Holder within such time.
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2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Shares issuable
upon the exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and nonassessable, and
free from all preemptive rights, rights of first refusal or first offer, taxes,
liens and charges with respect to the issuance thereof. During the period within
which the rights represented by this Warrant may be exercised, the Company shall
at all times have authorized and reserved for issuance sufficient shares of its
Class B Common Stock to provide for the exercise of the rights represented by
this Warrant.
3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. Subject to the
provisions of Section 11 hereof, the number and kind of Shares purchasable upon
the exercise of this Warrant and the Exercise Price therefor shall be subject to
adjustment from time to time upon the occurrence of certain events, as follows:
(a) RECLASSIFICATION, CONSOLIDATION OR MERGER. In case of any
reclassification of the Class B Common Stock (other than a change in par value,
or as a result of a subdivision or combination), or in case of any consolidation
or merger of the Company with or into another corporation (other than a
consolidation or merger with another corporation in which the Company is a
continuing corporation and in which the Company's shareholders immediately
preceding such consolidation or merger own at least 50% of the voting securities
of the Company following such consolidation or merger and which does not result
in any reclassification of the Shares issuable upon exercise of this Warrant),
or in case of any sale of all or substantially all of the assets of the Company,
the Company, or such successor or purchasing corporation as the case may be,
shall execute a new Warrant, providing that the holder of this Warrant shall
have the right to exercise such new Warrant, and procure upon such exercise and
payment of the same aggregate Exercise Price, in lieu of the Shares of Common
Stock theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change, consolidation, sale of all or substantially all of the
Company's assets or merger by a holder of an equivalent number of shares of
Common Stock. Such new Warrant shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3. The provisions of this subsection (a), subject to Section 11 hereof,
shall similarly apply to successive reclassifications, consolidations, mergers,
and the sale of all or substantially all of the Company's assets.
(b) STOCK SPLITS, DIVIDENDS AND COMBINATIONS. In the event
that the Company shall at any time subdivide the outstanding shares of Class B
Common Stock, or shall issue a stock dividend on its outstanding shares of Class
B Common Stock, the number of Shares issuable upon exercise of this Warrant
immediately prior to such subdivision or to the issuance of such stock dividend
shall be proportionately increased, and the Exercise Price shall be
proportionately decreased, and in the event that the Company shall at any time
combine the outstanding shares of Class B Common Stock, the number of Shares
issuable upon exercise of this Warrant immediately prior to such combination
shall be proportionately decreased, and the Exercise Price shall be
proportionately increased, effective at the close of business on the date of
such subdivision, stock dividend or combination, as the case may be.
(c) CERTAIN EVENTS. If any change in the outstanding Class B
Common Stock of the Company or any other event occurs as to which the other
provisions of this Section 3 are not strictly applicable or if strictly
applicable would, in the good faith judgment of the Board of Directors of the
Company, not fairly protect the purchase rights of the Holder of the Warrant in
accordance with such provisions, then the Board of Directors of the Company
shall make an adjustment in the number and class of shares available under the
Warrant, the Exercise Price or the application of such provisions, so as to
protect such purchase rights as aforesaid. The adjustment shall be such as will
give the Holder of the Warrant upon exercise for the same aggregate Exercise
Price the total number, class and kind of shares as he would have owned had the
Warrant been exercised prior to the event and had he continued to hold such
shares until after the event requiring adjustment.
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4. NOTICES.
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(a) Upon any adjustment of the Exercise Price and any increase
or decrease in the number of Shares purchasable upon the exercise of this
Warrant in accordance with Section 3 hereof, then, and in each such case, the
Company, within thirty (30) days thereafter, shall give written notice thereof
to the Holder at the address of such Holder as shown on the books of the Company
which notice shall be signed by the Company's Chief Financial Officer and state
the Exercise Price as adjusted and, if applicable, the increased or decreased
number of Shares purchasable upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation of each and the factors upon which
such calculations are based.
(b) Any written notice by the Company required or permitted
hereunder shall be given by hand delivery or first class mail, postage prepaid,
addressed to the Holder at the address shown on the books of the Company for the
Holder.
5. OTHER NOTICES. If at any time:
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(a) the Company shall declare any cash dividend upon its
Class B Common Stock;
(b) the Company shall declare any dividend upon its Class B
Common Stock payable in stock or make any special dividend to the holders of its
Class B Common Stock;
(c) there shall be any capital reorganization or
reclassification of the capital stock of the Company; or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation;
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(e) there shall be any public offering of the Company's
securities;
then, in any one or more of said cases, the Company shall give, by fax or first
class mail, postage prepaid, addressed to the Holder of this Warrant at the
address of such Holder as shown on the books of the Company, (a) at least thirty
(30) days' prior written notice of the date on which the books of the Company
shall close or a record shall be taken for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding-up, and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or public offering, at least thirty (30) days' prior
written notice of the date when the same shall take place; PROVIDED, however,
that the Holder shall make reasonable best efforts attempt to respond to such
notice as early as possible after the receipt thereof; and PROVIDED further that
the Company shall be required to give prior written notice at least fifteen (15)
days in advance of any action contemplated by Sections 5(a), 5(b) and 5(e)
above. Any notice given in accordance with the foregoing sentence shall also
specify, in the case of any such dividend or distribution, the date on which the
holders of Common Stock shall be entitled thereto. Any notice given in
accordance with the foregoing clause (b) shall also specify the date on which
the holders of Class B Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation,
winding-up, conversion or public offering, as the case may be.
6. TRANSFER OF WARRANT. This Warrant may only be transferred in
compliance with federal and state securities laws and, except as provided below,
may not be transferred except with the prior written consent of the Company,
which shall not be unreasonably withheld or delayed, and any purported transfer
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without such prior written consent shall be null and void; PROVIDED, however,
that the Company may withhold its consent to transfer or assignment of this
Warrant to any person or entity who is deemed to be a competitor or prospective
competitor of the Company, such determination to be made in the reasonable
judgment of the Board of Directors of the Company. Notwithstanding the
foregoing, Holder may freely transfer this Warrant or portion thereof, subject
to compliance with federal and state securities laws, (i) to subsidiaries and
affiliates of Holder, or (ii) at any time after the 180-day period following the
closing of an initial firm commitment underwritten public offering pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the "INITIAL PUBLIC OFFERING"). The Holder of the Warrant shall be responsible
for any Stock transfer taxes payable in connection with the transfer of this
Warrant.
7. CONDITION TO EXERCISE OF WARRANT. Each certificate evidencing the
Shares issued upon exercise of this Warrant shall be stamped or imprinted with a
legend substantially in the following form and any additional legends required
by the Stockholders Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH,
ANY DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
8. FRACTIONAL SHARES. No fractional shares of Class B Common Stock will
be issued in connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefor upon the basis
of the Exercise Price then in effect.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Holder as follows:
(a) This Warrant has been duly authorized and executed by the
Company and is a valid and binding obligation of the Company enforceable in
accordance with its terms;
(b) The Shares have been duly authorized and reserved for issuance
by the Company and, when issued in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable;
(c) The rights, preferences, privileges and restrictions granted to
or imposed upon the Shares and the holders thereof are as set forth in the
Company's Certificate of Incorporation, a true and complete copy of which has
been delivered to the original Holder of this Warrant; and
(d) The execution and delivery of this Warrant are not, and the
issuance of the Shares upon exercise of this Warrant in accordance with the
terms hereof will not be, inconsistent with the Company's Certificate of
Incorporation or Bylaws, as amended.
10. REPRESENTATIONS AND WARRANTIES BY THE HOLDER. The Holder
represents and warrants to the Company as follows:
(a) This Warrant is being acquired for its own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the
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Securities Act. Upon exercise of this Warrant, the Holder shall, if so requested
by the Company, confirm in writing, in a form reasonably satisfactory to the
Company, that the Shares issuable upon exercise of this Warrant are being
acquired for investment and not with a view toward distribution or resale.
(b) The Holder understands that the Warrant and the Shares
have not been registered under the Securities Act by reason of their issuance in
a transaction exempt from the registration and prospectus delivery requirements
of the Securities Act pursuant to Section 4(2) thereof, and that they must be
held by the Holder indefinitely, and that the Holder must therefore bear the
economic risk of such investment indefinitely, unless a subsequent disposition
thereof is registered under the Securities Act or is exempted from such
registration. The Holder further understands that the Shares have not been
qualified under any applicable state securities laws by reason of their issuance
in a transaction exempt from the qualification requirements of any such laws and
which exemption depends upon, among other things, the bona fide nature of the
Holder's investment intent expressed in this Section 10.
(c) The Holder has such knowledge and experience in financial
and business matters generally and has such knowledge of the Company that it is
capable of evaluating the merits and risks of the purchase of this Warrant and
the Shares purchasable pursuant to the terms of this Warrant and of protecting
its interests in connection therewith.
(d) The Holder is able to bear the economic risk of the
purchase of the Shares pursuant to the terms of this Warrant.
(e) The Holder is an accredited investor within the meaning of
Regulation D promulgated under the Securities Act of 1933.
11. RIGHTS OF SHAREHOLDERS. No holder of this Warrant shall be
entitled, as a Warrant holder, to vote or receive dividends or be deemed the
holder of Class B Common Stock or any other securities of the Company which may
at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the holder of this
Warrant, as such, any of the rights of a shareholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised and the Shares purchasable upon the exercise hereof shall have become
deliverable and any applicable taxes shall have been paid, as provided herein.
12. EXPIRATION OF WARRANT. This Warrant shall expire and shall no
longer be exercisable as of 5:00 p.m., Eastern time, on November 19, 2003, or
as of 5:00 p.m., Eastern time, two (2) years after the Company's Initial Public
Offering, whichever is earlier.
13. REGISTRATION RIGHTS. The Company hereby grants piggyback
registration rights junior to existing rights holders ("Existing Holders") but
on a PARI PASSU basis with any future holders of piggyback registration rights
under the Second Amended and Restated Registration Rights Agreement dated
September 29, 1999 (as the same shall be amended from time to time, the "Rights
Agreement") and consistent with (but still junior to) the piggyback registration
rights in that agreement. The Company and the Holder of this Warrant will enter
into a separate definitive registration rights agreement as consistent as
reasonably possible with the relevant provisions of the Rights Agreement as
promptly as reasonably practicable after issuance of this Warrant. Such
registration rights shall not apply to the Company's Initial Public Offering.
The Holder of this Warrant shall be cutback from participation in any offering
prior to any cutbacks from Existing Holders. To the extent Xxxxxx becomes a
party to the Rights Agreement, no waiver or amendment of any
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such Rights Agreement shall have any effect on any Holder of this Warrant unless
such holder or holders have agreed to such waiver or amendment in writing. The
registration rights granted to each Holder shall terminate as to such Holder at
such time as the Holder shall be able to sell all such Holder's shares within
one three-month period pursuant to Rule 144.
14. LOCK-UP. In connection with the Company's Initial Public Offering
of its common stock, each Holder hereby agrees to enter into a market standoff
agreement in form and substance substantially similar to a market standoff
agreement entered into by all of the officers, directors, and greater than five
percent shareholders of the Company; provided, that under no circumstances shall
any Holder be bound by such agreement (except partially, if applicable) after
the first holder of the Company's securities with holdings at least as great as
the Holder of this Warrant that has entered into a market standoff agreement has
been released, either completely or partially, from such a market standoff
agreement.
15. MISCELLANEOUS.
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(a) This Warrant is being delivered in the State of New York
and shall be construed and enforced in accordance with and governed by the laws
of such State.
(b) The headings in this Warrant are for purposes of reference
only, and shall not limit or otherwise affect any of the terms hereof.
(c) The terms of this Warrant shall be binding upon and shall
inure to the benefit of any successors or assigns of the Company and of any
permitted holder or holders hereof and of the Shares issued or issuable upon the
exercise hereof.
(d) This Warrant and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
(e) The Company shall not, by amendment of its Certificate of
Incorporation, or through any other means, directly or indirectly, avoid or seek
to avoid the observance or performance of any of the terms of this Warrant and
shall at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the holder of this Warrant against impairment.
(f) Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in
the case of any such loss, theft or destruction, upon delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the
case of any such mutilation, upon surrender and cancellation of such Warrant,
the Company at its expense will execute and deliver to the holder of record, in
lieu thereof, a new Warrant of like date and tenor.
(g) This Warrant and any provision hereof may be amended,
waived or terminated only by an instrument in writing signed by the Company and
the Holder.
(h) Receipt of this Warrant by the holder hereof shall
constitute acceptance of and agreement to the foregoing terms and conditions.
16. NOTICES.
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Any notice or other document required or permitted to be given
or delivered to the Holder shall be delivered at, or sent by certified or
registered mail to, the Holder at: c/o Xxxxxxxx X. Xxxxxx, 55 East
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00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 or to such other address as shall
have been furnished to the Company in writing by the holder. Any notice or other
document required or permitted to be given or delivered to the Company shall be
delivered at, or sent by certified or registered mail to, the Company at: 0000
Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Chief Financial Officer, with
a copy to EXE Technologies, Inc., 000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, XX
00000, Attention: General Counsel or to such other address as shall have been
furnished in writing to the holder by the Company. Any notice so addressed and
mailed by registered or certified mail shall be deemed to be given when so
mailed. Any notice so addressed and otherwise delivered shall be deemed to be
given when actually received by the addressee.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
Issued as of the 19th day of November, 1999.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: SVP - Chief Financial Officer
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ACKNOWLEDGED AND ACCEPTED:
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
___________________________________
Title: Principal
___________________________________
Warrant Holder: 52nd Street Associates, Inc.
Address: c/o Xxxxxxxx X. Xxxxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
EXHIBIT A
NOTICE OF EXERCISE
TO: EXE TECHNOLOGIES, INC. [ADDRESS]
1. In lieu of exercising the attached Warrant for cash or check, the
undersigned hereby elects to effect the net issuance provision of Section 1(c)
of this Warrant and receive _________ (leave blank if you choose Alternative No.
2 below) shares of Class B Common Stock pursuant to the terms of this Warrant.
(Initial here if the undersigned elects this alternative). _______.
2. The undersigned hereby elects to purchase ______ (leave blank if you
choose alternative No. 1 above) shares of Class B Common Stock of EXE
TECHNOLOGIES, INC. pursuant to the terms of this Warrant, and tenders herewith
payment of the purchase price of such shares in full.
3. Please issue a certificate or certificates representing said shares
of Class B Common Stock in the name of the undersigned or in such other name as
is specified below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
4. [APPLICABLE ONLY IF THE SHARES OF CLASS B COMMON STOCK ISSUABLE UPON
EXERCISE OF THE WARRANT ARE NOT REGISTERED FOR RESALE UNDER THE SECURITIES ACT
OF 1933, AS AMENDED] The undersigned hereby represents and warrants that the
aforesaid shares of Class B Common Stock are being acquired for the account of
the undersigned for investment and not with a view to, or for resale, in
connection with the distribution thereof, and that the undersigned has no
present intention of distributing or reselling such shares, and that all
representations and warranties of the undersigned set forth in Section 10 of the
attached Warrant are true and correct as of the date hereof. In support thereof,
the undersigned agrees to execute an Investment Representation Statement in a
form to be mutually agreed by the parties.
--------------------------------
(Signature and Date)
Title:
-------------------------
Exhibit B
SAMPLE STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of
______________________ (this "Agreement"), is between EXE Technologies, Inc., a
Delaware corporation (the "Company"), and 52nd Street Associates (the
"Stockholder").
WHEREAS, the Stockholder owns, or is acquiring in connection
with the execution of this Agreement, shares of Class B Common Stock, par value
$.01 per share, of the Company together with any securities into which such
shares may be converted or for which such shares may be exchanged (the
"Shares").
WHEREAS, the parties hereto wish to restrict the transfer of
the Shares and to provide for, among other things, first offer, bring-along and
certain other rights under certain conditions.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. RESTRICTIONS ON TRANSFER OF SHARES.
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1.1 PERMITTED TRANSFERS. Notwithstanding anything to
the contrary contained in this Agreement, but subject to Sections 1.2 and 1.3,
the Stockholder may transfer all or a portion of its Shares to its subsidiaries
and affiliates (a "Permitted Transferee"). A Permitted Transferee of Shares
pursuant to this Section 1.1 may transfer its Shares pursuant to this Section
1.1 only to the transferor Stockholder or to a Person that is a Permitted
Transferee of such transferor Stockholder. Notwithstanding anything to the
contrary contained in this Agreement, if any Permitted Transferee of a
Stockholder to whom or which Shares have been transferred in accordance with
this Section 1.1 ceases to be a Permitted Transferee of such Stockholder, then,
prior to such event, such Stockholder may repurchase such Shares or, if such
Stockholder does not wish to repurchase such Shares, then such Permitted
Transferee shall offer such Shares to the Company, its designee, or assignee in
accordance with Section 2.2.
1.2 PERMITTED TRANSFER PROCEDURES. If any Stockholder
wishes to transfer Shares to a Permitted Transferee under Section 1.1, such
Stockholder shall give notice to the Company of its intention to make any
transfer permitted under Section 1.1 not less than ten (10) days prior to
effecting such transfer, which notice shall state the name and address of each
Permitted Transferee to whom such transfer is proposed and the number of Shares
proposed to be transferred to such Permitted Transferee.
1.3 TRANSFERS IN COMPLIANCE WITH LAW; SUBSTITUTION OF
TRANSFEREE. Notwithstanding any other provision of this Agreement, no transfer
may be made pursuant to this Section 1 or Section 2 unless (a) the transferee
has agreed in writing to be bound by the terms
B-1
and conditions of this Agreement (whereupon such transferee shall be substituted
for, and shall enjoy the same rights and be subject to the same obligations, as
its, his, or her predecessor hereunder) and (b) the transfer complies in all
respects with the applicable provisions of this Agreement and (c) the transfer
complies in all respects with applicable federal and state securities laws,
including, without limitation, the Securities Act. Upon becoming a party to this
Agreement, the Permitted Transferee of a Stockholder shall be substituted for,
and shall enjoy the same rights and be subject to the same obligations as, the
transferring Stockholder hereunder with respect to the Shares transferred to
such Permitted Transferee.
2. RIGHT OF FIRST OFFER AND BRING-ALONG RIGHTS.
-------------------------------------------
2.1 PROPOSED VOLUNTARY TRANSFERS.
2.1.1 OFFERING NOTICE. Subject to Section 1, if the
Stockholder (the "Selling Stockholder") wishes to transfer all or any portion of
its, his, or her Shares to any person or other entity (other than to a Permitted
Transferee or other than to a competitor of EXE, including without limitation,
Catalyst, Manhattan Associates, XxXxxx Corporation and Optum, to whom transfers
shall be prohibited (the "Prohibited Transferees") (a "Third Party Purchaser"),
such Selling Stockholder shall offer such Shares first to the Company, by
sending written notice (the "Offering Notice") to the Company, which shall state
(a) the number of Shares proposed to be transferred (the "Offered Securities")
and (b) the proposed purchase price per Share which the Selling Stockholder is
willing to accept (the "Offer Price"). Upon delivery of the Offering Notice,
such offer shall be irrevocable unless and until the rights of first offer
provided for herein shall have been waived or shall have expired.
2.1.2 OPTION: EXERCISE. For a period of sixty (60)
days after the giving of the Offering Notice pursuant to Section 2.1.1 (the
"Option Period"), the Company and/or the Designees shall have the right (the
"Option") to purchase all of the Offered Securities at a purchase price equal to
the Offer Price and upon the terms and conditions set forth in the Offering
Notice. The right of the Company and/or its Designees to purchase any or all of
the Offered Securities under this Section 2.1.2 shall be exercisable by
delivering written notice of the exercise thereof, prior to the expiration of
the 60-day period referred to above, to the Selling Stockholder, which notice
shall state the purchaser of the Shares and the number of Offered Securities
proposed to be purchased by such purchaser. The failure of the Company and/or
the Designees, if any, to respond within such 60-day period shall be deemed to
be a waiver of the Company's and the Designees' rights under this Section 2.1.2,
PROVIDED that the Company and/or the Designees may waive their rights under this
Section 2.1.2 prior to the expiration of such 60day period by giving written
notice to the Selling Stockholder.
2.1.3 CLOSING. The closing of the purchase of Offered
Securities subscribed for by the Company and/or the Designees under Section
2.1.2 shall be held at the principal office of the Company at 11:00 a.m., local
time, on the seventy-fifth (75th) day after the giving of the Offering Notice
pursuant to Section 2.1.1 or at such other time and place as the
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parties to the transaction may agree. At such closing, the Selling Stockholder
shall deliver certificates representing the Offered Securities, duly endorsed
for transfer and accompanied by all requisite transfer taxes, if any, and such
Offered Securities shall be free and clear of any Liens (other than those
arising hereunder and those attributable to actions by the purchasers) and the
Selling Stockholder shall so represent and warrant, and further represent and
warrant that it, he, or she is the sole beneficial and record owner of such
Offered Securities. The Company and/or the Designees, shall deliver at the
closing payment in full in immediately available funds for the Offered
Securities purchased by it, him or her. At such closing, all of the parties to
the transaction shall execute such additional documents as are otherwise
necessary or appropriate.
2.1.4 SALE TO A THIRD PARTY PURCHASER. If neither the
Company nor the Designees elect to purchase all, but not less than all, of the
Offered Securities under Section 2.1.2, the Selling Stockholder may, subject to
Section 2.3 sell the Offered Securities to a Third Party Purchaser on the terms
and conditions set forth in the Offering Notice; PROVIDED, HOWEVER, that such
sale is bona fide and made pursuant to a contract entered into within forty-five
(45) days of the earlier to occur of (a) the waiver by the Company and/or the
Designees of their respective options to purchase the Offered Securities and (b)
the expiration of the Option Period (the earlier of such dates being referred to
herein as the "Contract Date"); and PROVIDED FURTHER, that such sale shall not
be consummated unless and until all of the following conditions are met:
(a) The Selling Stockholder shall deliver to the
Company a certificate of a Third Party Purchaser, in form and substance
reasonably satisfactory to the Company, stating that (i) such Third Party
Purchaser is aware of the rights of the Company, contained in Section 2.1 and
(ii) prior to the purchase by such Third Party Purchaser of any of such Offered
Securities, such Third Party Purchaser shall become a party to this Agreement
and agree to be bound by the terms and conditions hereof in accordance with
Section 1.3 hereof; and
(b) A Third Party Purchaser shall have furnished
evidence satisfactory to the Company, in its reasonable judgment, as to the
financial ability of such Third Party Purchaser to consummate the proposed
purchase.
If such sale is not consummated within forty-five (45) days of the Contract Date
for any reason, then the restrictions provided for herein shall again become
effective, and no transfer of such Offered Securities may be made thereafter by
the Selling Stockholder without again offering the same to the Company, in
accordance with this Section 2.1.
2.2 BRING ALONG RIGHT.
-----------------
If General Atlantic Partners 41, L.P., a
Delaware limited partnership ("GAP LP"), GAP Coinvestment Partners, L.P., a New
York limited partnership ("GAP Coinvestment"), Xxxx Xxxxx, Xxxxx Xxxxxxx, Xxxx
Xxxxxx and Xxxxxxx Xxxx (the "EXE Stockholders" and collectively with GAP LP and
GAP Coinvestment, the "Major
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Stockholders") shall have received a bona fide offer from a person or other
entity that is not an affiliate of a Major Stockholder (or shall have entered
into a bona fide written agreement with such person or entity) relating to the
sale to such person or entity of all or substantially all of the issued and
outstanding securities of the Company held by the Major Stockholders (the
"Sale"), the Major Stockholders shall be entitled to deliver a notice (a "Buyout
Notice") to the Stockholder stating that they propose to effect (or cause the
Company to effect) such transaction, and specifying the name and address of the
proposed parties to such transaction, the consideration payable in connection
therewith, and attaching a copy of all writings between the Major Stockholders
(or the Company) and the other parties to such transaction necessary to
establish the terms of such transaction. The Stockholder agrees that, upon
receipt of a Buyout Notice, it, he, or she shall be obligated to sell the Shares
held by it, him, or her and to use its, his or her best efforts to cause the
Shares owned by their Permitted Transferees to be sold upon the terms and
conditions of such transaction (and otherwise take all necessary action to cause
the Company to consummate the proposed transaction, including voting such Shares
in favor of such transaction), PROVIDED, that, the Stockholder shall only be
obligated as provided above in this Section 2.2 if the Stockholder and its, his,
or her Permitted Transferee receives the same per Share consideration as the
Major Stockholders and all other stockholders selling shares of the Company in
the Sale.
3. RESTRICTIONS ON PUBLIC SALE BY HOLDERS. If and to the
extent requested by the Company or other holders of Company securities
exercising registration rights, as the case may be, in the case of a
non-underwritten public offering, or if and to the extent requested by the
underwriter, in the case of an underwritten public offering, Stockholder agrees
not to effect any public sale or distribution of any Shares or of any securities
convertible into or exchangeable or exercisable for such Shares, including a
sale pursuant to Rule 144 under the Securities Act, during the 90-day period
(180-day period in the case of an Initial Public Offering) beginning on the
effective date of such Registration Statement.
4. MISCELLANEOUS.
-------------
4.1 STOCK CERTIFICATE LEGEND. A copy of this
Agreement shall be filed with the Secretary of the Company and kept with the
records of the Company. Each certificate representing Shares now held or
hereafter acquired by any Stockholder shall for as long as this Agreement is
effective bear legends substantially in the following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES
MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM
THE
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REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR
PURSUANT TO A WRITTEN OPINION OF COUNSEL FOR THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR
OTHER DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY
THE TERMS OF THE STOCKHOLDERS AGREEMENT, DATED __________,
2000, BETWEEN EXE TECHNOLOGIES, INC. (THE "COMPANY") AND THE
STOCKHOLDER NAMED XXXXXXX, A COPY OF WHICH MAY BE INSPECTED AT
THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER
THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY
UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH
THE TERMS OF THE STOCKHOLDERS AGREEMENT.
4.2 NOTICES. All notices, demands or other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first class mail, return receipt requested,
courier service, overnight mail or personal delivery:
(a) if to the Company:
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: CFO
(b) if to the Major Stockholders to each
of them:
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
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(c) if to GAP LP or GAP Coinvestment:
c/o General Atlantic Service
Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
(d) if to the Stockholder, to its, his,
or her address as it appears in
the record books of the Company.
Any party may, by notice given in accordance with this Section 4.2, designate
another address or Person for receipt of notices hereunder. All such notices and
communications shall be deemed to have been duly given when delivered by hand,
if personally delivered; when delivered by courier or overnight mail, if
delivered by commercial courier service or overnight mail; and five (5) business
days after being deposited in the mail, postage prepaid, if mailed.
4.3 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors, heirs, legatees and legal representatives. This Agreement is not
assignable except in connection with a transfer of Shares in accordance with
this Agreement.
4.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of
or to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by any party from the terms of any
provision of this Agreement, shall be effective only if (i) it is made or given
in writing, (ii) signed by all the parties thereto, and (iii) only in the
specific instance and for the specific purpose for which made or given. Any such
amendment, supplement, modification, waiver or consent shall be binding upon the
Company, the Major Stockholders, and the Stockholder.
4.5 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
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4.6 GOVERNING LAW. This agreement shall be governed
and construed in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of law of any jurisdiction.
4.7 SEVERABILITY. If any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
4.8 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 and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein. This Agreement, together with
the exhibits hereto, supersede all prior agreements and understandings between
the parties with respect to such subject matter.
4.9 TERM OF AGREEMENT. This Agreement shall become
effective upon the execution hereof and shall terminate upon the earlier of: (i)
the date on which the Company commences a firm commitment underwritten initial
public offering pursuant to an effective Registration Statement filed pursuant
to the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder and (ii) the closing of an acquisition or merger
transaction involving the Company in which the Company is not the surviving
entity and the stockholders of the Company prior to the transaction own less
than 50% of the outstanding stock of the surviving entity; provided, however,
that Sections 3 and 4 hereof shall survive termination of this Agreement.
4.10 SUCCESSORS AND ASSIGNS, THIRD PARTY
BENEFICIARIES. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of the parties hereto. Except for the
Designees and the Major Stockholders, no person other than the parties hereto
and their successors and permitted assigns is intended to be a beneficiary of
any of the rights granted hereunder.
4.11 FURTHER ASSURANCES. Each of the parties shall,
and shall cause their respective Affiliates to, execute such instruments and
take such action as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed by its duly authorized officer.
Issued as of the 19th day of November, 1999.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------
Title: SVP-Chief Financial Officer
-------------------------------
ACKNOWLEDGED AND ACCEPTED:
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx X Xxxxxx
Title: Principal
Warrant Holder:
52nd Street Associates
c/o Xxxxxxxx X. Xxxxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
