EXHIBIT 99.2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of August 15,
2003, by and among SSA Global Technologies, Inc., a Delaware corporation
("Parent"), Rush Merger Subsidiary, Inc., a Delaware corporation and a direct
wholly owned subsidiary of Parent ("Merger Sub"), the Hood Partnership, Ltd, a
Texas limited partnership ("Stockholder"), and EXE Technologies, Inc., a
Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, immediately prior to the execution of this Agreement,
Parent, Merger Sub and the Company have entered into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), pursuant to which the
parties thereto have agreed, upon the terms and subject to the conditions set
forth therein, to merge Merger Sub with and into the Company (the "Merger"); and
WHEREAS, as of the date hereof, the Stockholder is the record
and Beneficial Owner (as hereinafter defined) of the Existing Shares (as
hereinafter defined) of the common stock, $0.01 par value, of Company (the
"Company Common Stock"); and
WHEREAS, as inducement and a condition to entering into the
Merger Agreement, the Parent has required the Stockholder to agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Certain Definitions. In addition to the terms defined
elsewhere herein, capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement. For purposes of
this Agreement:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-2
of the Exchange Act.
(b) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities means having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3(a) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). Without duplicative counting of the same
securities by the same holder, securities Beneficially Owned by a Person include
securities Beneficially Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act
with respect to the securities of the same issuer.
(c) "Existing Shares" means an aggregate of 110,857 shares of
the Company Common Stock Beneficially Owned by the Stockholder as of the date
hereof.
(d) "Person" shall mean and include an individual, a
partnership (general or limited), a joint venture, a corporation, a trust, an
estate, a limited liability company, an association, a joint-stock company, an
unincorporated organization or other entity and a Governmental Entity,
government or other department or agency thereof.
(e) "Securities" means the Existing Shares together with any
shares of the Company Common Stock or other securities of the Company acquired
by the Stockholder in any capacity after the
date hereof and prior to the termination of this Agreement whether upon the
exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any capacity
or otherwise.
Section 2. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Parent and Merger Sub as follows:
(a) Ownership of Shares. Stockholder is the sole record and
Beneficial Owner of (i) the Existing Shares set forth opposite such
Stockholder's name on Schedule 1 hereto, (ii) options to purchase such shares of
Company Common Stock set forth opposite such Stockholder's name on Schedule 1
hereto and (iii) warrants to purchase such shares of Company Common Stock set
forth opposite such Stockholder's name on Schedule 1 hereto. On the date hereof,
the Existing Shares constitute all of the shares of the Company Common Stock
owned of record or Beneficially Owned by such Stockholder. There are no
outstanding options or other rights to acquire from such Stockholder or
obligations of such Stockholder to sell or to acquire, any shares of the Company
Common Stock. Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 4, 6 and 7
hereof, sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Existing Shares and
any other Securities owned by or hereafter acquired by Stockholder with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Organization and Authority. Stockholder has full power and
authority to execute and deliver this Agreement and to perform his obligations
hereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance by each Stockholder that is an entity of this Agreement
and the performance of its obligations hereunder and the consummation by it of
the transactions contemplated herby have been duly authorized by its partners,
and, no other action on the part of such Stockholder is necessary to authorize
the execution, delivery and performance by such Stockholder of this Agreement
and the consummation by the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Stockholder and, assuming due and valid
authorization, execution and delivery thereof by the other parties thereto, is a
valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms, except that (i) such enforcement may
be subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally, and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(c) Power; Binding Agreement. Each Stockholder that is a
natural person has the legal capacity, power and authority to enter into and
perform all of such Stockholder's obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by such Stockholder
and constitutes a valid and binding agreement of such Stockholder.
(d) No Conflicts. Except as contemplated by the Merger
Agreement, no filing with, and no permit, authorization, consent or approval of,
any Governmental Entity is necessary for the execution and delivery of this
Agreement by Stockholder and the consummation by Stockholder of the transactions
contemplated hereby, none of the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholder of the transactions contemplated
hereby or compliance by Stockholder with any of the provisions hereof shall (i)
conflict with or result in any breach of any organizational documents applicable
to such Stockholder, (ii) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by which such
Stockholder or any of its properties or assets may be bound, or (iii) violate
any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to such Stockholder or any of such Stockholder's
properties or assets.
(e) No Encumbrance. Except as permitted by this Agreement, the
Existing Shares of Stockholder are now and, at all times during the term hereof,
and the Securities will be, held by Stockholder, or by a nominee or custodian
for the benefit of Stockholder, free and clear of all mortgages, claims,
charges, liens, security interests, pledges or options, proxies, voting trusts
or agreements, understandings or arrangements or any other rights whatsoever
("Encumbrances"), except for any such Encumbrances arising hereunder.
(f) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Stockholder.
(g) Reliance by the Parent, Merger Sub and the Company.
Stockholder understands and acknowledges that each of Parent, Merger Sub and the
Company is entering into the Merger Agreement in reliance upon the Stockholders'
execution and delivery of this Agreement.
Section 3. Disclosure. Stockholder hereby agrees to permit the Company
and Parent to publish and disclose in the Proxy Statement and Schedule 13E-3
(including all documents and schedules filed with the Securities and Exchange
Commission), and any press release or other disclosure document which Parent, in
its sole discretion, determines to be necessary or desirable in connection with
the Merger and any transactions related thereto, Stockholder's identity and
ownership of the Common Stock and the nature of Stockholder's commitments,
arrangements and understandings under this Agreement.
Section 4. Transfer And Other Restrictions.
(a) No Solicitation. Stockholder will not, and will cause its
affiliates, if any, and partners, investment bankers, attorneys, accountants and
other agents and representatives of Stockholder and such affiliates (such
affiliates, partners investment bankers, attorneys, accountants, agents and
representatives of any person are hereinafter collectively referred to as the
"Representatives" of such person) not to (i) solicit, initiate or encourage
(including by way of furnishing information), or take, directly or indirectly
any other action designed to facilitate, any Acquisition Proposal, (ii)
participate in any discussions or negotiations regarding any Acquisition
Proposal. Stockholder will notify the Company orally and in writing of any such
offers, proposals, or inquiries relating to the purchase or acquisition by any
person of Securities (including, without limitation, the terms and conditions
thereof and the identity of the person making it), within 24 hours of the
receipt thereof. Stockholder will and will cause its Representatives to
immediately cease and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any parties conducted heretofore
without respect to any Acquisition Proposal. For purposes of this Agreement,
each of Parent and Merger Sub are not deemed to be affiliates of Stockholder.
Notwithstanding the foregoing, none of the provisions of this Section 4(a) shall
be construed to prohibit, limit or restrict Stockholder or any of its Affiliates
(or any of its or their officers, directors, partners, agents, representatives
or advisors) who is a member of the Company Board or an officer of the Company
from exercising its or their fiduciary duties to the Company by voting or taking
any other action whatsoever in its or their capacity as an officer or director.
(b) Certain Prohibited Transfers. Prior to the termination of
this Agreement, Stockholder agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift), or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of any or all of the Securities or any interest therein;
(ii) grant any proxy, power of attorney, deposit any
of the Securities into a voting trust or enter into a voting agreement or
arrangement with respect to the Securities except as provided in this Agreement;
or
(iii) take any other action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
in any material respect or have the effect of preventing or disabling
Stockholder from performing its obligations under this Agreement.
Section 5. Voting of the Company Common Stock. Stockholder hereby
agrees that, during the period commencing on the date hereof and continuing
until the first to occur of (a) the Effective Time or (b) termination of this
Agreement in accordance with its terms, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of the holders of
the Company Common Stock, however called, or in connection with any written
consent of the holders of the Company Common Stock, however solicited,
Stockholder will appear at the meeting or otherwise cause the Securities to be
counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) all of the Securities having voting
power thereon
(A) in favor of the adoption of the Merger
Agreement and the approval of the Asset Purchase and other actions contemplated
by the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof;
(B) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement, the Asset Purchase Documents or this Agreement; and
(C) except as otherwise agreed to in writing
in advance by Parent in its sole discretion, against the following actions
(other than the Merger and the transactions contemplated by this Agreement and
the Merger Agreement): (1) any Acquisition Proposal and (2)(a) any change in a
majority of the persons who constitute the Board of Directors of the Company;
(b) any material change in the present capitalization of the Company, including
without limitation any proposal to sell a substantial equity interest in the
Company or its Subsidiaries; (c) any amendment of the Certificate of
Incorporation or Bylaws of the Company; whether such amendment is to be effected
by merger or otherwise; (d) any other change in the Company's corporate
structure or business; or (e) any other action which, in the Parent's reasonable
judgment, is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone or materially adversely affect the Merger and the
transactions contemplated by this agreement, the Merger Agreement and the Asset
Purchase Documents. Stockholder shall not enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 5.
Section 6. Irrevocable Proxy.
(a) Stockholder hereby irrevocably grants to, and appoints,
Parent, Xxxxxxx Xxxxxxxx and Xxxx Xxxxxxxx, or any of them in their respective
capacities as officers of the Parent and any individual who shall hereafter
succeed to any such office of the Parent and each of them individually, such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of Stockholder, to vote or cause to be voted
the Securities, or grant a consent or approval in respect of the Securities, in
connection with any meeting of the stockholders of the Company or at any
adjournment or postponement thereof, (i) in favor of the adoption of the Merger
Agreement, approval of the Asset Purchase and the approval of other actions
contemplated by the Merger Agreement, the Asset Purchase Documents and this
Agreement and any actions required in furtherance thereof and hereof; (ii)
against any other Acquisition Proposal or any action or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger Agreement, the
Asset Purchase Documents or this Agreement; and (iii) otherwise in accordance
and consistent with Section 5 hereof.
(b) Stockholder represents that any proxies heretofore given
in respect of the Existing Shares are not irrevocable, and that such proxies
either have been or are hereby revoked.
(c) Stockholder understands and acknowledges that the Parent
and Merger Sub are entering into the Merger Agreement and the Asset Purchase
Documents in reliance upon such Stockholder's execution and delivery of this
Agreement. Stockholder hereby affirms that the irrevocable proxy set forth in
this Section 6 is given in connection with the execution of the Merger Agreement
and the Asset Purchase Documents, and that such irrevocable proxy is given to
secure the performance of the duties of such Stockholder under this Agreement.
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may not be revoked, except by amendment, modification or
termination effected in accordance with Section 10(c) hereof. Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of section 212(e) of Delaware
General Corporation Law. The power and authority hereby conferred shall not be
terminated by any act of Stockholder or by operation of law, by the dissolution
of (if such Stockholder is other than a natural person), by lack of appropriate
power or authority, or by the occurrence of any other event or events and shall
be binding upon all his/its heirs, representatives, executors, successors and/or
assigns, as applicable. If after the execution of this Agreement Stockholder
shall dissolve (if such Stockholder is other than a natural person), ceases to
have appropriate power or authority, or if any other such event or events shall
occur, Parent is nevertheless authorized and directed to vote the Securities in
accordance with the terms of this Agreement as if such dissolution, if
applicable, lack of appropriate power or authority or other event or events had
not occurred and regardless of notice thereof. Notwithstanding any other
provisions of this Agreement, the irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this Agreement.
Section 7. Stop Transfer.
(a) Stockholder agrees with, and covenants to, Parent and the
Company that such Stockholder will not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Securities, unless such transfer is made in compliance
with this Agreement.
(b) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of share or the like other than pursuant
to the Merger, the term "Existing Shares" will be deemed to refer to and include
the shares of the Company Common Stock as well as all such stock dividends and
distributions and
any shares into which or for which any or all of the Securities may be changed
or exchanged and appropriate adjustments shall be made to the terms and
provisions of this Agreement.
Section 8. Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement and the Merger Agreement. Each party shall promptly consult with
the other and provide any necessary information and material with respect to all
filings made by such party with any Governmental Entity in connection with this
Agreement and the Merger Agreement and the transactions contemplated hereby and
thereby.
Section 9. Termination. This Agreement shall terminate on the
termination of the Merger Agreement or the consummation of the Merger.
Notwithstanding the foregoing, Section 10 hereof shall continue indefinitely and
survive any termination pursuant to this Section 9.
Section 10. Miscellaneous.
(a) Entire Agreement. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof.
(b) Successors and Assigns. This Agreement shall not be
assigned by operation of law or otherwise without the prior written consent of
the other parties hereto. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
(c) Amendment and Modification. This Agreement may not be
amended, altered, supplemented or otherwise modified or terminated except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(d) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
FedEx, to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Parent, to:
SSA Global Technologies, Inc.
000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Stockholder, to the address set forth on the signature
page hereto:
If to the Company, to:
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & XxXxxxxx
2300 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(e) Severability. Any term or provision of this Agreement
which is held to be invalid, illegal or unenforceable in any respect in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
(f) Specific Performance. Each of the parties hereto
recognizes and acknowledges a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore in the event of any such breach the aggrieved party shall be entitled
to the remedy of specified performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(g) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, will not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(h) No Third Party Beneficiaries. This Agreement is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
(i) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of law thereof.
(j) Descriptive Heading. The descriptive headings used herein
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(k) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
(l) Further Assurances. From time to time, at any other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(m) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(n) Submission to Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with this Voting Agreement shall be brought exclusively in any
federal or state court located in the State of Delaware, and each of the parties
hereto hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party hereto agrees that service of
process on such party as provided in Section 10(d) as to giving notice hereunder
shall be deemed effective service of process on such party.
IN WITNESS WHEREOF, Parent, Merger Sub, Company and the
Stockholder have caused this Agreement to be duly executed as of the day and
year first written above.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
SSA GLOBAL TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
RUSH MERGER SUBSIDIARY, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
HOOD PARTNERSHIP, LTD
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx, General Partner
0000 Xxxxxxxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
SCHEDULE 1
110,857 shares held directly by Hood Partnership, Ltd.
