EXHIBIT 5
to SCHEDULE 13D
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated June 27, 2002 (this "AGREEMENT"), among
Xxxx Xxxxxx ("SELLER"), General Atlantic Partners 57, L.P., a Delaware limited
partnership ("GAP LP") and GAP Coinvestment Partners II, L.P., a Delaware
limited partnership ("GAP COINVESTMENT" and, collectively with GAP LP, the
"PURCHASERS").
WHEREAS, upon the terms and conditions set forth in this Agreement,
Seller proposes to sell to each of the Purchasers the aggregate number of shares
of common stock, par value $0.01 per share (the "COMMON STOCK"), of EXE
Technologies, Inc., a Delaware corporation (the "COMPANY"), set forth opposite
such Purchaser's name on SCHEDULE 2.1, for the aggregate purchase price set
forth opposite such Purchaser's name on SCHEDULE 2.1 hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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1.1 DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"CLOSING" has the meaning set forth in Section 2.2(a) of this
Agreement.
"CLOSING DATE" has the meaning set forth in Section 2.2(a) of this
Agreement.
"COMMON STOCK" has the meaning set forth in the recitals to this
Agreement.
"COMPANY" has the meaning set forth in the recitals to this Agreement.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
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"GAP COINVESTMENT" has the meaning set forth in the preamble to this
Agreement.
"GAP LP" has the meaning set forth in the preamble to this Agreement.
"GOVERNMENTAL AUTHORITY" means the government of any nation, state,
city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, voting restriction (statutory or other), lien
(statutory or other) or preference, priority, right or other security interest
or preferential arrangement of any kind or nature whatsoever.
"ORDERS" has the meaning set forth in Section 3.2 of this Agreement.
"PERSON" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"PURCHASED SHARES" has the meaning set forth in Section 2.1 of this
Agreement.
"PURCHASERS" has the meaning set forth in the preamble to this
Agreement.
"REQUIREMENT OF LAW" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder.
"SELLER" has the meaning set forth in the preamble to this Agreement.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
---------------------------------
2.1 PURCHASE AND SALE OF COMMON STOCK FROM SELLER. Subject to the
terms and conditions herein set forth, Seller agrees to sell to each Purchaser,
and each Purchaser, severally and not jointly, agrees to purchase from Seller,
on the Closing Date the aggregate number of shares of Common Stock set forth
opposite such Purchaser's name on SCHEDULE 2.1
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hereto, for the aggregate purchase price set forth opposite such Purchaser's
name on SCHEDULE 2.1 hereto (all of the shares of Common Stock being purchased
pursuant to Section 2.1 being referred to herein as the "PURCHASED SHARES").
2.2 CLOSING.
(a) Subject to the satisfaction or waiver of the
conditions set forth in Article V, the closing of the sale and purchase of the
Purchased Shares (the "Closing") shall take place at the offices of the
Purchasers, at 10:00 a.m., local time, on the Business Day upon which the
conditions set forth in Article V are satisfied or waived as provided therein,
or at such other time, place and date that Seller and the Purchasers may agree
in writing (the "Closing Date").
(b) On the Closing Date, (i) Seller shall deliver to each
of the Purchasers facsimile copies of stock certificates representing the
Purchased Shares being purchased by such Purchaser from Seller and stock powers,
in the form attached hereto as Exhibit A (the "Stock Powers"), executed by
Seller and (ii) each Purchaser will deliver to Seller the aggregate purchase
price for the Purchased Shares being purchased by such Purchaser by wire
transfer of immediately available funds. Promptly after the Closing Date, but in
any event not later than five Business Days after the Closing Date, Seller shall
deliver to each of the Purchasers stock certificates representing the Purchased
Shares being purchased by such Purchaser from Seller and the Stock Powers.
Seller shall assist the Purchasers in causing the Company's transfer agent to
register the purchase and sale of the Purchased Shares by the Purchasers
pursuant to this Agreement and, in exchange for the certificates delivered to
each Purchaser by Seller, deliver to each Purchaser a certificate registered on
the Company's stock ledger in the name of such Purchaser representing the
aggregate number of Purchased Shares being purchased by such Purchaser under
this Agreement. Upon the request of the Purchasers if required to consummate the
valid transfer of the Purchased Shares, Seller shall deliver to the Purchasers
an opinion of counsel to Seller, in customary form and reasonably satisfactory
to the Purchasers, opining that it is not required to register the offer and
sale of the Purchased Shares to the Purchasers pursuant to the provisions of the
Securities Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to each of the Purchasers as follows:
3.1 CAPACITY. Seller has the legal capacity to execute, deliver
and perform his obligations under this Agreement.
3.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by Seller of this Agreement and the transactions contemplated hereby
(a) have been duly authorized by all necessary action of Seller, (b) do not
violate, conflict with or result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation of Seller, or any
Requirement of Law applicable to Seller and (c) do not violate any judgment,
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injunction, writ, award, decree or order of any nature (collectively, "ORDERS")
of any Governmental Authority against, or binding upon, Seller. Seller is not
party to, or bound by, any agreement that is currently in effect, granting
rights to any Person which are inconsistent with the rights to be granted by
Seller under this Agreement.
3.3 TITLE TO PURCHASED SHARES. Seller owns beneficially and of
record the Purchased Shares being sold to the Purchasers and has good and valid
title to such Purchased Shares, free and clear of all Liens. Seller has the
unrestricted power and authority to transfer his Purchased Shares to the
Purchasers. Upon delivery to the Purchasers of the stock certificates
representing such Purchased Shares and payment therefor, the Purchasers shall
acquire good and valid title to such Purchased Shares, free and clear of all
Liens.
3.4 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No approval,
consent, compliance, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under a Requirement of Law is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the sale and delivery of the Purchased Shares) by or enforcement
against Seller of this Agreement or the transactions contemplated hereby.
3.5 BINDING EFFECT. This Agreement has been duly executed and
delivered by Seller and constitutes the legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
3.6 LITIGATION. There are no actions, suits, proceedings, claims,
complaints, disputes, arbitrations or investigations pending or, to the
knowledge of Seller, threatened, at law, in equity, in arbitration or before any
Governmental Authority against Seller purporting to enjoin or restrain the
execution, delivery or performance by Seller of this Agreement.
3.7 PRIVATE OFFERING. No form of general solicitation or general
advertising was used by Seller or his representatives in connection with his
sale of the Purchased Shares. No registration of the Purchased Shares, pursuant
to the provisions of the Securities Act or any state securities or "blue sky"
laws, is required by the offer or sale of the Purchased Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
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Each of the Purchasers hereby represents and warrants, severally and
not jointly, to Seller as follows:
4.1 EXISTENCE AND POWER. Such Purchaser (a) is a limited
partnership or limited liability company, as the case may be, duly organized and
validly existing under the laws of the jurisdiction of its formation and (b) has
the requisite partnership or limited liability
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company, as the case may be, power and authority to execute, deliver and perform
its obligations under this Agreement.
4.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by such Purchaser of this Agreement and the transactions
contemplated hereby (a) have been duly authorized by all necessary partnership
or limited liability company, as the case may be, action, (b) do not contravene
the terms of such Purchaser's organizational documents, or any amendment
thereof, and (c) do not violate, conflict with or result in any breach or
contravention of, or the creation of any Lien under, any Contractual Obligation
of such Purchaser or any Requirement of Law applicable to such Purchaser and (d)
do not violate any Orders of any Governmental Authority against, or binding
upon, such Purchaser.
4.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase of the Purchased Shares) by, or enforcement against,
such Purchaser of this Agreement or the transactions contemplated hereby.
4.4 BINDING EFFECT. This Agreement has been duly executed and
delivered by such Purchaser and constitutes the legal, valid and binding
obligations of such Purchaser, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 RESTRICTED SECURITIES. The Purchased Shares to be acquired by
such Purchaser pursuant to this Agreement are being acquired for its own account
for investment only, and not with a view to, or for sale in connection with, any
distribution of such Purchased Shares or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America. Such Purchaser understands that such Purchased Shares are "restricted
securities" within the meaning of Rule 144 under the Securities Act and that the
Purchased Shares cannot be sold, transferred or otherwise disposed of except in
compliance with the Securities Act and applicable state securities laws, as then
in effect. Such Purchaser understands that the Purchased Shares will not be
registered at the time of their issuance under the Securities Act for the reason
that the sale provided for in this Agreement is exempt pursuant to the so-called
"Section 4(1)(1/2) exception" and that the reliance of Seller on such exemption
is predicated in part on such Purchaser's representations set forth herein.
4.6 ACCREDITED INVESTOR. Such Purchaser is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the Securities
Act.
4.7 RISK OF LOSS. Such Purchaser understands that its acquisition
of the Purchased Shares is a speculative investment which involves a high degree
of risk of loss, including the potential loss of its entire investment in the
Company.
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4.8 INVESTMENT EXPERIENCE. Such Purchaser is able to fend for
itself, can bear the economic risk of the investment and has such knowledge and
experience in financial or business matters, including investments in securities
that are restricted as to their transferability, that it is capable of
evaluating the merits and risks of the investment in the Purchased Shares and of
making an informed investment decision.
4.9 LEGEND. Such Purchaser understands and agrees that the
certificates for the Purchased Shares shall bear the following legend, or a
similar legend to the same effect, until (i) the Purchased Shares have been
registered under the Securities Act and effectively been disposed of in
accordance with a registration statement that has been declared effective; or
(ii) in the opinion of counsel for the Purchasers the Purchased Shares may be
sold without registration under the Securities Act and any applicable "Blue Sky"
or state securities laws:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND ALL SUCH SECURITIES ARE SUBJECT TO RESTRICTIONS ON THE
TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. THE SECURITIES
REPRESENTED HEREBY MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR
DISPOSITION MAY BE EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT."
ARTICLE V
CONDITIONS
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5.1 PURCHASERS' CONDITIONS. The obligation of the Purchasers to
purchase the Purchased Shares, to pay the purchase price therefor at the Closing
and to perform any obligations hereunder shall be subject to the satisfaction as
determined by, or waiver by, the Purchasers of the following conditions on or
before the Closing Date.
(a) The representations and warranties of Seller
contained in Article III hereof shall be true and correct in all respects at and
on the Closing Date as if made at and on such date.
(b) Seller shall have delivered to each of the Purchasers
stock certificates representing the number of Purchased Shares set forth
opposite such Purchaser's name on Schedule 2.1 hereto, together with the Stock
Powers, and the Company shall have delivered to each of the Purchasers, in
exchange for the stock certificates delivered to each of the Purchasers by
Seller, stock certificates in definitive form representing the number of
Purchased Shares set forth opposite such Purchaser's name on Schedule 2.1
hereto, registered in the name of such Purchaser.
5.2 SELLER'S CONDITIONS. The obligation of Seller to sell the
Purchased Shares and the obligation to perform his other obligations hereunder
shall be subject to the satisfaction as determined by, or waiver by, Seller of
the following conditions on or before the Closing Date:
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(a) Each Purchaser shall have delivered the aggregate
purchase price for the Purchased Shares to be purchased by such Purchaser.
(b) The representations and warranties of the Purchasers
contained in Article IV hereof shall be true and correct in all respects at and
on the Closing Date as if made at and on such date.
ARTICLE VI
MISCELLANEOUS
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6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement indefinitely.
6.2 NOTICES. All notices, demands and 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, telecopier,
courier service or personal delivery:
if to Seller:
Xx. Xxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx XX 000
Xxxxxxxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
if to the Purchasers:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
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All such notices, demands and other communications shall be deemed to
have been duly given (i) when delivered by hand, if personally delivered; (ii)
one Business Day after being sent, if sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery; (iii) five (5) Business
Days after being sent, if sent by registered or certified mail, return receipt
requested, postage prepaid; and (iv) when receipt is mechanically acknowledged,
if telecopied. Any party may by notice given in accordance with this Section 6.2
designate another address or Person for receipt of notices hereunder. Any party
may give any notice, request, consent or other communication under this
Agreement using any other means (including, without limitation, personal
delivery, messenger service, first class mail or electronic mail), but no such
notice, request, consent or other communication shall be deemed to have been
duly given unless and until it is actually received by the party to whom it is
given.
6.3 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. Subject to applicable securities laws
and the terms and conditions thereof, the Purchasers may assign any of their
rights under this Agreement to any of their respective affiliates (as defined in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended), provided that each such assignee shall make the
representations and warranties under Article IV. Seller may not assign any of
his rights under this Agreement without the prior written consent of the
Purchasers. No Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.
6.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of Seller or the
Purchasers 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.
(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 Seller or the Purchasers from the terms of
any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by Seller and the Purchasers purchasing a majority
of the Purchased Shares and (ii) only in the specific instance and for the
specific purpose for which made or given. Except where notice is specifically
required by this Agreement, no notice to or demand on Seller in any case shall
entitle Seller to any other or further notice or demand in similar or other
circumstances.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
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6.7 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.
6.8 ENTIRE AGREEMENT. This Agreement, together with the exhibits
and schedules hereto, 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,
representations, warranties or undertakings, other than those set forth or
referred to herein or therein. This Agreement, together with the exhibits and
schedules hereto, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
6.9 PUBLIC ANNOUNCEMENTS. Neither Seller nor the Purchasers will
make any public statements with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other parties
hereto, except to the extent such party reasonably believes such public
statement is required by any Requirement of Law, including, without limitation,
any securities or stock market regulation, or to the extent required by the
Purchasers in connection with their customary reporting to their capital
investors. Notwithstanding the foregoing, Seller will not use or refer to the
name of any Purchaser in any public statement or disclosure without the consent
of such Purchaser except to the extent that such party reasonably believes such
statement or disclosure is required by applicable law or stock market
regulations.
6.10 FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
6.11 REGISTRATION RIGHTS. Seller hereby agrees that pursuant to
Section 10(f) of the Second Amended and Restated Registration Rights Agreement,
dated as of September 29, 1999, by and among the Company, General Atlantic
Partners 57, L.P., General Atlantic Partners 41, L.P., GAP Coinvestment
Partners, L.P., GAP Coinvestment, MSD 1998 GRAT #6, Triple Xxxxxx Investments,
LLC, Rothko Investments, LLC, MSD Portfolio L.P. - Investments, TCV III (Q),
L.P., TCV III Strategic Partners, L.P., TCV III, L.P., TCV III (GP) and the
stockholders named therein, Seller's incidental or "piggy-back" registration
rights of Seller contained in Sections 3(b) and 4 of the Registration Rights
Agreement, Form S-3 registration rights contained in Section 5 of the
Registration Rights Agreement are, with respect to the Purchased Shares, hereby
automatically transferred to the Purchasers.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Stock Purchase Agreement on the date first written above.
/s/ Xxxx Xxxxxx
--------------------------------------------
Xxxx Xxxxxx
GENERAL ATLANTIC PARTNERS 57, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
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SCHEDULE 2.1
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PURCHASED SHARES AND PURCHASE PRICE
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PURCHASER PURCHASED SHARES PURCHASE PRICE
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GAP LP 1,314,248 $1,971,372
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GAP Coinvestment 185,752 278,628
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Total: 1,500,000 $2,250,000
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