STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this "Agreement") is made as
of this 21st day of May, 1998, by and among Xxxxx Xxxxxxxx (the "Seller"),
Astrid Holdings, Inc., a Delaware corporation ("Astrid"), and EXE Technologies,
Inc., a Delaware corporation (the "Company").
BACKGROUND
The Seller, who is the sole shareholder of Astrid, currently
owes the Company $200,000 pursuant to a Promissory Note dated __________, 1997
in favor of the Company (the "Seller's Note"). Astrid owes the Company
$1,103,000 (the "Astrid Debt") pursuant to a long-term loan from the Company to
Astrid in the amount of $750,000 (the "Astrid Loan") and certain other
inter-company receivables in the amount of $353,000 (the "Astrid Receivables").
The Seller owns 487,037 shares of Class A Common Stock, par value $.01 per
share, of the Company (the "Shares").
The Seller desires to sell the Shares to the Company, and the
Company desires to repurchase the Shares from the Seller, on the terms and
conditions set forth herein. The Seller desires to repay to Seller's Note, and
Astrid desires to repay the Astrid Debt.
Intending to be legally bound, and in consideration of the
mutual agreements contained herein, the parties agree as follows:
1. SALE AND REPURCHASE OF THE SHARES. The Seller hereby sells, assigns,
delivers and transfers to the Company, and the Company hereby repurchases and
acquires from the Seller, all right, title and interest in and to the Shares for
a purchase price per share of $4.46 and an aggregate purchase price of
$2,172,185.02 (the "Purchase Price").
2. SURRENDER OF CERTIFICATES. Promptly after execution of this
Agreement, the Seller shall surrender and deliver to the Company the
fully-endorsed stock certificates representing the Shares, together with one or
more fully-executed stock powers in a form reasonably acceptable to the Company.
3. CONSIDERATION. Promptly after satisfaction of the obligations set
forth in Section 2, as payment in full of the Purchase Price, the Company shall:
3.1 credit the amount of $200,000 against the outstanding balance
on the Seller's Note, which shall constitute payment in full of the Seller's
Note;
3.2 credit the amount of $750,000 against the outstanding balance
on
the Astrid Loan, which shall constitute payment in full of the Astrid Loan;
3.3 credit the amount of $353,000 against the outstanding
balance of the Astrid Receivables, which shall constitute payment in full of the
Astrid Receivables; and
3.4 pay to the Seller the net amount of $869,185.02 by delivery
of the Company's check or by wire transfer.
4. ASTRID OPTION AGREEMENT. Upon satisfaction of the obligations set
forth in Section 2, the Astrid Agreement dated September 15, 1997 among the
Company, Astrid and the stockholders named therein shall terminate and be of no
further force and effect.
5. INTERCOMPANY AGREEMENT. Upon satisfaction of the obligations set
forth in Section 2, the Intercompany Services and Facilities Agreement dated
__________, 1997 between Astrid and Neptune Systems, Inc., a predecessor of the
Company, shall terminate and be of no further force and effect.
6. SELLERS'S REPRESENTATIONS AND WARRANTIES. The Seller and Astrid,
jointly and severally, represent and warrant to the Company as follows:
6.1 The Seller is the owner of the Shares, free and clear of all
liens, security interests, pledges, claims, liabilities and restrictions of any
nature whatsoever.
6.2 The Company shall acquire good and marketable title to the
Shares being repurchased by the Company free and clear of any liens, security
interests, pledges, claims, liabilities and restrictions of any nature
whatsoever.
6.3 There are no judgments, orders, decrees, injunctions or suits
existing, pending or threatened involving or relating to the Shares.
6.4 The Seller and Astrid each have full legal right and power to
enter into and perform this Agreement and each other agreement, document,
instrument or writing contemplated by this Agreement.
6.5 Upon execution of this Agreement and satisfaction by the
parties of their respective obligations hereunder, there shall be no outstanding
debts or obligations between the Company, on the one hand, and the Seller and
Astrid, on the other hand.
6.6 This Agreement, and each other agreement, document, instrument
or writing contemplated by this Agreement, after execution and delivery by the
Seller and Astrid, shall constitute the valid and binding obligation of the
Seller and Astrid, enforceable in
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accordance with its terms. Neither the execution and delivery of this Agreement,
or any of the other agreements, documents, instruments or writings contemplated
by this Agreement, by the Seller or Astrid nor the consummation by the Seller or
Astrid, of the transactions contemplated hereby or thereby (i) require the
consent of any Person, (ii) give any Person any right or in the Shares, or (iii)
violate any agreement or instrument to which the Seller or Astrid is a party.
"Person" as used herein means a natural person, joint venture, corporation, sole
proprietorship, trust estate, partnership, cooperative, association, non-profit
organization, government (including any branch, agency, subdivision or
department thereof) or other entity.
7. COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Seller and Astrid as follows:
7.1 The Company has all requisite power and authority to enter
into this Agreement and each other agreement, document, instrument or writing
contemplated by this Agreement.
7.2 This Agreement has been duly and validly authorized by the
Company.
7.3 Upon execution of this Agreement and satisfaction by the
parties of their respective obligations hereunder, there shall be no outstanding
debts or obligations between the Company, on the one hand, and the Seller and
Astrid, on the other hand.
7.4 This Agreement, and each other agreement, document, instrument
or writing contemplated by this Agreement, after execution and delivery by the
Company, shall constitute the valid and binding obligation of the Company
enforceable in accordance with its terms. Neither the execution and delivery of
this Agreement, or any of the other agreements, documents, instruments or
writings contemplated by this Agreement, by the Company nor the consummation of
the transaction contemplated hereby or thereby will (i) require the consent of
any Person, or (ii) violate any agreement to which the Company is a party.
8. INDEMNIFICATION.
8.1 The Seller and Astrid jointly and severally shall indemnify,
defend and hold harmless the Company, from and after the date hereof, against
any and all actions, causes of action, suits, claims, demands, settlements,
judgments, losses, damages, expenses and any other liabilities (including, but
not limited to, reasonable attorneys' fees, costs of investigation, interest and
penalties), arising out of, relating to, connected with or with respect to any
of the following:
8.1.1 Any misrepresentation or breach or failure of any
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representation, warranty, covenant or agreement made by the Seller or Astrid in
this Agreement or in any other agreement, document, instrument or writing
delivered or to be delivered pursuant to this Agreement; and/or
8.1.2 Any actions, causes of action, claims, demands, suits,
settlements, judgments, damages, losses, costs and legal and other expenses
incident to the foregoing.
8.2 The Company shall indemnify, defend and hold harmless the
Seller, from and after the date hereof, against any and all actions, causes of
action, suits, claims, demands, settlements, judgments, losses, damages,
expenses and any other liabilities (including, but not limited to, reasonable
attorneys, fees, costs of investigation, interest and penalties), arising out
of, relating to, connected with or with respect to any of the following:
8.2.1 Any misrepresentation or breach or failure of any
representation, warranty, covenant or agreement made by the Company in this
Agreement or in any other agreement, document, instrument or writing delivered
or to be delivered pursuant to this Agreement; and/or
8.2.2 Any actions, causes of action, claims, demands, suits,
settlements, judgments, damages, losses, costs and legal and other expenses
incident to the foregoing.
9. NOTICES. All notices, consents and other communications required or
permitted under this Agreement shall be in writing, and shall be deemed to have
been duly given (a) when delivered personally, (b) seven (7) business days after
being mailed by first class certified mail, postage prepaid, return receipt
requested, or (c) one (1) business day after being sent by an internationally
recognized overnight delivery service, postage or delivery charges prepaid, to
the parties at their respective addresses stated on the signature page of this
Agreement. Notices may also be given by prepaid telegram or facsimile and shall
be effective on the date transmitted if confirmed within twenty-four (24) hours
thereafter by a signed original sent in the manner provided in the preceding
sentence. Any party may change its address for notices by giving notice of a new
address to each other party in accordance with this Section 9, except that any
such change of address notice shall not be effective unless and until received.
10. MISCELLANEOUS.
10.1 This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes any and all
prior written or oral communications and agreements, and all contemporaneous
oral communications among the parties concerning the subject matter hereof.
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10.2 No provision of this Agreement may be amended, changed or
modified in any manner, orally or otherwise, except by an instrument in writing
signed by all parties affected by such provision.
10.3 This Agreement shall be binding upon and inure to the benefit
of the parties and their respective beneficiaries, heirs, executors,
administrators, successors and assigns. No party shall in any manner assign any
of is rights or obligations under this Agreement without the express prior
written consent of the other parties.
10.4 This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law of any jurisdiction.
10.5 This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument, and in pleading or proving any provision
of this Agreement, it shall be necessary to produce more than one such
counterpart.
10.6 All agreements, representations and warranties made in this
Agreement or pursuant hereto shall survive the date hereof, any investigation,
and the consummation of the transactions herein contemplated.
10.7 If any term or provision of this Agreement or the application
thereof to any Person or circumstances shall to any extent, be invalid or
unenforceable, then the remainder of this Agreement or the application of such
term or provision to Persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
10.8 As used in this Agreement, all pronouns and any, variations
thereof shall refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or entity may require.
10.9 Headings and captions herein are inserted for convenience, do
not constitute a part of this Agreement, and shall not be admissible for the
purpose of proving the intent of the parties.
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IN WITNESS WHEREOF, the parties have executed this Stock Repurchase
Agreement as of the date first above written.
SELLER:
By: /S/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
Address: 0000 XXXXXX XXXX XX 000
XXXXXX XXX XXX, XX 00000
ASTRID HOLDINGS, INC.
By: /S/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
Address: 0000 XXXXXX XXXX XX 000
XXXXXX XXX XXX, XX 00000
EXE TECHNOLOGIES, INC.
By: /S/ XX XXXXXX
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Name: XX XXXXXX
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Title: VICE PRESIDENT, CFO
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Address: 00000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
