PLEDGE AGREEMENT
For good and valuable consideration and intending to be legally bound,
Xxxxxxx X. Xxxxxxxx, a resident of Dallas, Texas (herein "Pledgor") hereby
assigns, pledges and grants to EXE Technologies, Inc., a Delaware corporation
with an address of 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (herein "EXE"), a
security interest in his legal and beneficial interest in the shares of capital
stock of EXE underlying the stock options granted pursuant to the option
agreements (herein "Stock Options") described on Exhibit A attached hereto and
made a part hereof (as the same may from time to time be amended in writing by
the parties hereto) (hereinafter referred to as the "Securities," which
Securities together with all additions thereto, substitutions or exchanges
therefor, proceeds thereof and distributions thereon shall be referred to
collectively herein as the "Collateral"), as collateral security for the payment
and performance of all indebtedness, liability and obligations of Pledgor to
EXE, whether for principal, interest, fees, expenses or otherwise, arising under
that certain Promissory Note, dated the date hereof, made and delivered by
Pledgor and payable to the order of EXE, and any other documents, agreements and
instruments executed in connection therewith, including this Agreement (herein
collectively, the "Obligations," with such agreements, documents and instruments
evidencing and documenting the Obligations being herein referred to collectively
as the "Documents"), all on the following terms and conditions:
1. Pledgor represents, warrants and covenants that:
a. Pledgor will notify EXE of his intention to exercise any
portion of the Stock Option(s) at least three (3) business days prior to such
exercise and hereby waives the right to receive the stock certificates that
would otherwise be delivered to him upon exercise of such Stock Option(s) and
agrees that the stock certificates shall be delivered directly to EXE as
Collateral for the Obligations and held by EXE until the Obligations are
satisfied in full, subject to the limitation in Exhibit A.
b. Pledgor shall have good title to the Securities free and
clear of all liens and encumbrances except the security interest created
hereby, any restrictions that may be applicable under Federal and State
securities laws, and as described on Exhibit A.
c. The Securities are not, and Pledgor covenants that they
will not, be subject to any contractual or other restrictions governing their
issuance, transfer, ownership or control, except as indicated on the stock
certificates for the Securities.
d. Pledgor has delivered to EXE assignment or transfer powers
with respect to the Securities duly executed in blank by Pledgor in the form
attached hereto as Exhibit B, and this Pledge Agreement and such powers have
been duly and validly executed and are binding and enforceable against Pledgor
in accordance with their terms; and the pledge of the Securities in accordance
with the terms hereof will, to the extent all or part of the Stock Options are
exercised,
create a valid and perfected first priority security interest in the Securities
securing payment of the Obligations at the time of such exercise.
2. Pledgor agrees not to (i) sell or otherwise dispose of, or
grant any option with respect to, any of the Collateral, or (ii) create or
permit to exist any lien, security interest, or other charge or encumbrance
upon or with respect to any of the Collateral, except the security interest
under this Agreement.
3. Prior to the full payment and performance of the Obligations,
EXE shall be entitled to receive, as additional Collateral, any and all
additional shares of stock or any other property of any kind distributable on
or by reason of the Securities pledged hereunder, whether in the form of or by
way of stock dividends, warrants, partial liquidation, conversion, prepayments
or redemptions (in whole or in part), liquidation, or otherwise with the sole
exception of non-liquidating declared cash dividends or cash interest payments
as the case may be, whether before or after exercise of the Stock Options. If
any of such property, other than such cash dividends or interest, shall come
into the possession or control of Pledgor, Pledgor shall hold or control and
forthwith transfer and deliver the same to EXE subject to the provisions
hereof.
4. So long as no default has occurred under any of the Obligations
or the Documents and Pledgor is in full compliance with the terms hereof, and
following the date that Pledgor exercises all or a portion of the Stock
Options and the stock certificates with respect to such exercises are issued:
a. Pledgor shall be entitled to receive and retain any
non-liquidating cash dividends paid on the Securities pledged hereunder.
b. Pledgor may exercise all voting rights, if any, pertaining
to the Securities for any purpose not inconsistent with the terms hereof or of
the Obligations or the Documents. In the event the Securities have been
transferred into the name of EXE or a nominee or nominees of EXE prior to
default, EXE or its nominee will execute and deliver upon request of Pledgor
an appropriate proxy in order to permit Pledgor to vote, if applicable, the
same.
5. Pledgor shall take all reasonable actions (and execute and
deliver from time to time all instruments and documents) necessary or
appropriate or requested by EXE to continue the validity, enforceability and
perfected status of the pledge of Securities hereunder.
6. After the occurrence of a default under any of the Obligations
or the Documents or if any representation, warranty or agreement of Pledgor
hereunder is breached or proves to be false after the exercise of all or a
portion of the Stock Options:
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a. To the maximum extent permitted under applicable law, and
consistent with Section 13 hereof, EXE will have a Power of Attorney to
exercise the Stock Options to acquire the pledged Securities, may transfer or
cause to be transferred any of the pledged Securities into its own or a
nominee's or nominees' names and may sell or otherwise transfer the pledged
Securities at its discretion.
b. EXE shall be entitled to receive and apply in payment of
the Obligations any cash dividends, interest or other payment on the pledged
Securities.
c. EXE shall be entitled to exercise in EXE's discretion all
voting rights, if any, pertaining thereto and in connection therewith and at
the written request of EXE, Pledgor shall execute any appropriate dividend,
payment or brokerage orders or proxies.
d. Pledgor shall take any action necessary, required or
requested by EXE, in order to allow EXE fully to enforce the pledge of the
Securities hereunder and realize thereon to the fullest possible extent,
including but not limited to the filing of any claims with any court,
liquidator or trustee, custodian, receiver or other like person or party.
e. In consideration of the outstanding principal amount of
the Obligations, any accrued and unpaid interest thereon and any costs, fees,
or expenses incurred by EXE hereunder or thereunder and due to EXE at the time
of the occurrence of an Event of Default (collectively, the "Default Amount"),
EXE shall have the right to cancel the number of shares of the Securities
pledged hereunder (or the number of Stock Options equivalent thereto) equal
to: (i) (x) the Default Amount, plus (y) the aggregate exercise price of any
options exercised by EXE hereunder, divided by (ii) the closing price of EXE
Common Stock as quoted on the Nasdaq Stock Market on the last trading day
immediately prior to the date of the Event of Default (rounded up to the
nearest whole share). The remedy provided to EXE in this subparagraph 6.e.
shall be separate and cumulative with respect to any other remedies provided
hereunder, under the Uniform Commercial Code as in effect from time to time in
Texas, under any other statute or the common law or under any of the
Documents, and the exercise of the remedy provided under this subparagraph
6.e. shall not limit or prejudice the exercise of any other available rights
or remedies.
f. EXE shall have all the rights and remedies granted or
available to it hereunder, under the Uniform Commercial Code as in effect from
time to time in Texas, under any other statute or the common law, or under any
of the Documents, including the right to sell the pledged Securities or any
portion thereof at one or more public or private sales upon ten (10) days'
written notice and to bid thereat or purchase any part or all thereof in its
own or a
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nominee's or nominees' names, free and clear of any equity of redemption; and to
apply the net proceeds of the sale, after deduction for any expenses of sale,
including the payment of all EXE's reasonable attorneys' fees in connection with
the Obligations and the sale, to the payment of the Obligations in any manner or
order which EXE in its sole discretion may elect, without further notice to or
consent of Pledgor and without regard to any equitable principles of marshalling
or other like equitable doctrines.
g. EXE may increase, in its sole discretion, but shall not be
required to do so, the Obligations by making additional advances or incurring
expenses for the account of Pledgor deemed appropriate or desirable by EXE in
order to protect, enhance, preserve or otherwise further the sale or
disposition of the Collateral or any other property EXE holds as security for
the Obligations.
7. After the occurrence of a default under any of the Obligations
or the Documents or if any representation, warranty or agreement of Pledgor
hereunder is breached or proves to be false prior to the exercise of all of
the Stock Options, EXE may:
a. Direct that upon exercise of all or a portion of the Stock
Options, stock certificates with respect to such exercise(s) shall be
delivered to EXE, after which EXE may exercise all of the rights in Section 6
hereof; and
b. Issue stop transfer instructions to EXE's Transfer Agent.
8. a. Pledgor recognizes that EXE may be unable to effect a sale
to the public of all or part of the Securities by reason of certain
prohibitions or restrictions in the federal or state securities laws and
regulations (herein collectively called the "Securities Laws"), or the
provisions of other federal and state laws, regulations or rulings, but may be
compelled to resort to one or more sales to a restricted group of purchasers
who will be required to agree to acquire the Securities for their own account,
for investment and not with a view to the further distribution or resale
thereof without restriction. Pledgor agrees that any sale(s) so made may be at
prices and on other terms less favorable to Pledgor than if the Securities
were sold to the public, and that EXE has no obligation to delay sale of the
Securities for period(s) of time necessary to permit the issuer thereof to
register the Securities for sale to the public under any of the Securities
Laws. Pledgor agrees that negotiated sales whether for cash or credit made
under the foregoing circumstances shall not be deemed for that reason not to
have been made in a commercially reasonable manner. Pledgor shall cooperate
with EXE and shall satisfy any requirements under the Securities Laws
applicable to the sale or transfer of the Securities by EXE.
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b. In connection with any sale or disposition of the
Collateral, EXE is authorized to comply with any limitation or restriction, as
it may be advised by its counsel, that is necessary or desirable in order to
avoid any violation of applicable law or to obtain any required approval of
the purchaser(s) by any governmental regulatory body or officer and it is
agreed that such compliance shall not result in such sale being considered not
to have been made in a commercially reasonable manner, nor shall EXE be liable
or accountable by reason of the fact that the proceeds obtained at such
sale(s) are less than might otherwise have been obtained.
9. Pledgor will pay EXE the amount of any reasonable expenses,
including counsel fees and expenses, incurred by EXE in connection with the
failure of Pledgor to perform hereunder.
10. Pledgor hereby irrevocably submits to the personal and
exclusive jurisdiction of the state courts of the State of Texas for the
County of Dallas or the United States District Court for the Northern District
of Texas over any suit, action or proceeding arising out of or relating to
this Pledge Agreement. Pledgor hereby irrevocable waives, to the fullest
extent permitted by applicable law, any objection which Pledgor may now have
or hereafter have to the laying of the venue of any such suits, action or
proceeding brought in such court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Pledgor agrees that, to the fullest extent permitted by applicable law, a
final judgment in any such suit, action, or proceeding brought in such a court
shall be conclusive and binding upon Pledgor, and may be enforced in any
courts in the jurisdiction of which Pledgor is or may be subject by a suit
upon such judgment.
11. This Pledge Agreement shall be binding upon the successors and
assigns of Pledgor and shall inure to the benefit of EXE and its successors
and assigns, and shall be governed as to its validity, interpretation and
effect by the laws of the State of Texas, U.S.A., without regard to the
conflicts of laws principles of any jurisdiction; and any terms used herein
that are defined in the Uniform Commercial Code as enacted in Texas shall have
the meanings therein set forth.
12. If EXE shall waive any rights or remedies arising hereunder or
under any applicable law, then such waiver shall not be deemed to be a waiver
upon the later occurrence or recurrence of any of said events. No delay by EXE
in the exercise of any right or remedy provided hereunder or otherwise shall
under any circumstances constitute or be deemed to be a waiver, express or
implied, of the same and no course of dealing between the parties hereto shall
constitute a waiver of EXE's rights or remedies.
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13. Pledgor hereby irrevocably appoints EXE as its attorney-in-fact
to execute, deliver and record, if appropriate, from time to time any
instruments or documents in connection with the Collateral, in Pledgor's names
upon the occurrence of a default under any of the Obligations or the Documents.
14. This Pledge Agreement together with the Obligations represents
the entire understanding of the parties with respect to the subject matter
hereof, and no modification or change herein shall be effective unless
contained in a writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Pledge
Agreement on the 27th day of October, 2000.
PLEDGOR:
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
EXE:
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
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Its: President & CEO
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EXHIBIT A
Stock options granted up to an aggregate amount of 25,000 shares (subject to
equitable adjustment) of Common Stock of EXE issued pursuant to Option
Agreements listed below; provided that if only a portion of the stock obtainable
pursuant to the exercise of stock options associated with an Option Agreement is
pledged, then the stock subject to the pledge shall be deemed to be the stock
obtained upon initial exercise of such stock option(s), and, if necessary, all
subsequent exercises until all 25,000 shares (subject to equitable adjustment)
have been delivered to EXE. Once 25,000 shares (subject to equitable adjustment)
have been delivered to EXE, any excess shares obtainable pursuant to the
exercise of stock options associated with an Option Agreement will no longer be
subject to this pledge.
The Option Agreements are:
DATE NO. OF SHARES EXERCISE PRICE % VESTED
---- ------------- -------------- --------
10/1/99 40,000 $3.00 25% (10,000)
1/12/00 15,000 $3.00 100% (15,000)
EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED and pursuant to the Pledge Agreement dated
as of ____________, 2000 between the undersigned and EXE (the "Pledge
Agreement"), the undersigned hereby sells, assigns and transfers unto EXE or its
successors, the Securities and the Collateral standing in the undersigned's name
on the books of the corporation(s) that issued the Securities or the Collateral,
as the case may be, represented by certificate(s) number(s) ____________
delivered herewith, and does hereby irrevocably constitute and appoint
______________ as attorney-in-fact, with full power of substitution, to transfer
the Securities on the books of said corporation. All capitalized terms used in
this Stock Power but not defined in this Stock Power shall have the meanings
ascribed to such terms in the Pledge Agreement. This Stock Power was executed in
conjunction with the terms of the Pledge Agreement and may be utilized only in
conjunction with the terms of the Pledge Agreement.
Dated: _________________, 200_
PLEDGOR
By
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(Signature)
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(Type or Print Name)
Its
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INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
