VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (this "Trust Agreement"), is entered
into as of December 9, 1999 by and between Xxxxxxxx X. Xxxxx Hood
("Stockholder") and Xxxxxxx Xxxx (the "Trustee").
WHEREAS, Stockholder is the owner of 500,000 shares of Class A
Common Stock (the "Shares") of EXE Technologies, Inc., a Delaware corporation
(the "Company"), which Shares have been transferred by the Trustee in
relation to the dissolution of the marriage of Trustee and Stockholder and
the property settlement being entered into in connection with such
dissolution, which settlement provided that Stockholder would receive
13.8408% of Trustee's stock ownership in the Company.
WHEREAS, in connection with such transfer, the parties to that
certain Second Amended and Restated Stockholders Agreement dated as of
September 29, 1999, by and among the Company and the stockholders specified
therein (the "Stockholders Agreement"), consented to this transfer and waived
certain rights with respect to such transfer, conditioned upon and subject to
Stockholder entering into this Trust Agreement, a copy of such consent and
waiver is attached as Exhibit A hereto.
WHEREAS, Stockholder wishes to appoint the Trustee under terms as
more specifically described herein.
WHEREAS, Stockholder shall retain beneficial ownership of the
Shares and be entitled to all economic benefits from such ownership and the
right to sell and transfer the Shares subject to the terms and restrictions
of the Stockholders Agreement, the Lock-Up Agreement to be entered into
between the Trustee and the Company's underwriters with respect to the shares
of the Company's stock owned and controlled by the Trustee in his own right
(the "Lock-Up Agreement") and Rule 144 under the Securities Act of 1933, as
amended ("Rule 144").
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound, the
parties hereto agree as follows:
1. TRANSFER OF STOCK TO TRUSTEE. Stockholder hereby assigns and
delivers to the Trustee all certificates representing the Shares, and the
Trustee hereby acknowledges and accepts such delivery of such certificates,
and Stockholder further agrees to do all things and to execute all documents
necessary for the transfer of the Shares to the Trustee on the books of the
Company; provided, however, Stockholder shall retain the right to sell the
Shares in accordance with and subject to (a) the Stockholders Agreement, (b)
the same terms and restrictions as set forth in the Lock-Up Agreement and (c)
Rule 144, in which case Trustee shall return the Shares
to Stockholder and take all other actions necessary to accomplish such sale
of the Shares as directed by the Stockholder.
2. ISSUANCE OF STOCK CERTIFICATE TO THE TRUSTEE. The Trustee shall
surrender to the Company for cancellation all certificates evidencing the
Shares and in their stead shall procure from the Company new certificates
evidencing the Shares, to be issued to him as the Trustee under this Trust
Agreement.
3. VOTING TRUST CERTIFICATE. The Trustee, in exchange for the
Shares, shall issue and deliver to Stockholder a voting trust certificate
(the "Voting Trust Certificate") showing the number of Shares transferred by
Stockholder to the Trustee.
3.1 FORM AND EXECUTION OF VOTING TRUST CERTIFICATE. The Voting
Trust Certificate issued hereunder shall be substantially in the form
attached hereto as Exhibit B. All Voting Trust Certificates now or hereafter
issued under this Trust Agreement shall bear the two legends set forth below.
THIS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY BE
REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
TRANSFER OF THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF SECTION 4
OF THE VOTING TRUST AGREEMENT PURSUANT TO WHICH THE SAME WAS ISSUED, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY
AND AT THE REGISTERED OFFICE OF THE COMPANY IN THE STATE OF DELAWARE. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE TERMS AND
CONDITIONS OF THE SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED
SEPTEMBER 29, 1999 AMONG THE COMPANY AND THE STOCKHOLDERS NAMED THEREIN, A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
THE SALE, TRANSFER OR OTHER DISPOSITION OF SUCH SECURITIES IS SUBJECT TO THE
TERMS OF SUCH AGREEMENT AND SUCH SECURITIES ARE TRANSFERABLE ONLY UPON PROOF
OF COMPLIANCE THEREWITH.
3.2 ACCEPTANCE OF TRUST BY STOCKHOLDER. By accepting the
Voting Trust Certificate issued hereunder, Stockholder agrees that the Shares
represented by the Voting Trust Certificate issued to Stockholder shall be
held by the Trustee upon and subject to the terms and conditions of this
Trust Agreement and the trust created hereby (the "Trust").
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4. TRANSFER OF VOTING TRUST CERTIFICATE. The Voting Trust
Certificate is not transferable or assignable except in accordance with, and
as permitted by, the Stockholders Agreement and each Voting Trust Certificate
shall be subject to the restrictions on transfer set forth in the
Stockholders Agreement to the extent and for the period that the underlying
Shares are so restricted. If so transferred, the Voting Trust Certificate
shall be transferable by the record holder on the books of the Trustee upon
the surrender of the Voting Trust Certificate properly endorsed for transfer.
Until so transferred, the Trustee may treat the record holder as the owner
of the Voting Trust Certificate for all purposes whatsoever. No transfer of
the Voting Trust Certificate shall in any way remove the Shares represented
by the Voting Trust Certificate from being held under this Trust Agreement
and any transferee, by applying for and/or accepting such transfer, does
hereby consent to be bound by the terms of this Trust Agreement.
5. AUTHORIZATION OF VOTING TRUSTEE.
5.1 DESIGNATION AND AUTHORIZATION. The Trustee is hereby
designated as the "Voting Trustee" under this Trust within the meaning of
Section 218 of the Delaware General Corporation Law, and as such the Trustee
shall have full power and authority, and is hereby fully empowered and
authorized, in his unrestricted discretion, to: (i) represent Stockholder and
the Shares and vote thereon for every lawful purpose; (ii) consent to any
lawful act of the Company; (iii) waive any notice to Stockholder of any
meeting of the Company; and (iv) consent to any action under, or waive any
provision of, or take any action under the Stockholders Agreement, in respect
of all Shares held by him as the Trustee hereunder, as though he were the
absolute owner of the Shares, provided that Trustee takes the same action
with respect to stock of the Company owned or controlled by Trustee in his
own right; including at all meetings of the stockholders of the Company, in
the election of directors and upon any and all matters in question which may
be brought before the stockholders of the Company for their approval or
consent, as fully as the Stockholder might do if personally present,
including but not limited to any merger, consolidation, combination, sale of
substantially all of the assets or liquidation of the Company. Without
limiting the foregoing, the Trustee may vote in person or by any proxy
selected at any meeting of the Company, may be a director and/or an officer
of the Company, may serve as such with or without compensation, and may vote
for himself as such. The Trustee or any corporation or partnership of which
he is a stockholder, officer or director or in which he may have any
financial interest, may: (i) be employed with compensation or engage in
transactions for or at a profit with the Company; (ii) may be engaged or
retained by the Company for services and compensated therefor; or (iii) may
transact directly or indirectly any other lawful business with the Company.
5.2 NOTICE TO STOCKHOLDER. The Trustee shall be under no duty
to provide to Stockholder any advance notice of any meetings of the
stockholders of the Company or votes to be taken by the Trustee thereon.
Notwithstanding anything herein to the contrary, Trustee shall promptly
deliver to Stockholder any notice received by Trustee under the Stockholders
Agreement.
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5.3 GENERAL LIMITATION ON TRUSTEE. Trustee shall take all
steps necessary for Stockholder to enjoy the benefits, and be subject to the
obligations, contained in the Stockholders Agreement. Trustee shall not vote
the Shares, or take any other action with respect to the Shares, which would
result in the Shares receiving different treatment than the stock of the
Company owned or controlled by Trustee in his own right. Trustee shall not
sell, assign, pledge, hypothecate or otherwise encumber the Shares without
the prior written consent of the Stockholder.
6. TRUSTEE LIABILITY. The Trustee may vote the Shares either in
person or by proxy, and in voting the Shares, the Trustee shall incur no
responsibility as stockholder, trustee or otherwise, except for his own
individual malfeasance. Without limiting the foregoing, the Trustee shall
not be liable to Stockholder for any vote cast, or for any consent or waiver
given by him, in the absence of gross negligence, provided that Trustee at
all times exercises good faith in such matters.
7. TRUSTEE'S INDEMNITY. The Trustee shall be indemnified fully
against all costs, charges, expenses and other liabilities properly incurred
by him in the exercise of any power conferred upon him by this Trust
Agreement. The Trustee may set-off against such right of indemnity any
dividends on account of the Shares; and Stockholder hereby covenants with the
Trustee that in the event such monies and securities are insufficient for
that purpose, Stockholder will hold harmless and indemnify the Trustee
against all loss or damage which he may sustain by reason of anything he may
lawfully do in the execution of this Trust Agreement.
8. DISTRIBUTIONS; RECAPITALIZATIONS.
8.1 DIVIDENDS OR OTHER DISTRIBUTIONS. The Trustee shall
collect and receive any and all dividends and other distributions that may
accrue, of money or property paid upon, or distributed in respect of, the
Shares and, (except for shares of capital stock of the Company) subject to
deduction as provided in paragraph 7 above, shall deliver the same to
Stockholder; provided, however, that the Trustee may, by written notice to
the Company, instruct the Company to pay directly to the record holders of
the Voting Trust Certificate thereto any dividend or other distribution of
money or other property (except shares of capital stock of the Company). In
the event that the Trustee receives any shares of the capital stock of the
Company as a dividend upon, or other distribution in respect of, the Shares
held by him hereunder, the Trustee shall hold such shares subject to this
Trust Agreement and shall issue additional Voting Trust Certificates of
record at the close of business on the day fixed by the Company as the record
date for such dividend or distribution.
8.2 RECAPITALIZATION OR REORGANIZATION. In the event that,
prior to the termination of this Trust Agreement, the Shares are changed into
or exchanged for a different number or kind of shares of stock or other
securities of the Company or another corporation, whether through
recapitalization, reorganization, stock splits, combination of shares, merger
or
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consolidation, the number and kind of shares of stock or other securities
into which each then outstanding share shall be so changed or exchanged shall
be held by the Trustee subject to this Trust Agreement and the Trustee shall
issue substituted Voting Trust Certificates to Stockholder. The term
"Company" shall include any successor corporation resulting from any such
reorganization, merger or consolidation, and any reference to the capital
stock of the Company shall include such substituted securities.
9. MERGER OR SALE OF ASSETS.
9.1 RECEIPT OF CONSIDERATION. If the Company shall be merged
with or into, or consolidated with, or shall sell all or substantially all of
its assets to, any other corporation, or if the Company's Board of Directors
and the holders of a majority of the outstanding shares of the Company's
common stock approve the sale of the Company's stock, the Trustee shall have
authority to collect and receive the full consideration to which Stockholder
may become entitled, and upon the receipt of such consideration shall have
authority to surrender or exchange such Shares if and as required by the
terms of such merger, consolidation or sale.
9.2 DISTRIBUTION OF CONSIDERATION. Upon receipt by the Trustee
of such consideration, whether or not such consideration shall consist in
whole or in part of Shares having voting power, the Trustee shall forthwith
distribute such consideration to Stockholder, but only upon surrender of the
Voting Trust Certificate by Stockholder to the Trustee, whereupon this Trust
Agreement shall forthwith terminate.
10. CONTINUANCE AND TERMINATION OF TRUST. The Trust shall continue
indefinitely and shall terminate upon the sale of all of the Shares by the
Stockholder.
11. SUCCESSOR TRUSTEES.
11.1 RESIGNATION. The Trustee may resign at any time upon
written notice to the Company and Stockholder.
11.2 SUCCESSOR TRUSTEE. Upon the death, incapacity or
resignation of the original Trustee hereunder, the original Trustee shall
have the right to name a successor Trustee(s) in writing. In the event the
original Trustee fails or for any other reason is unable to name a
successor(s), the original Trustee's executor or other duly appointed
representative shall (i) automatically become the successor Trustee or (ii)
appoint a successor Trustee(s). In the event such person or entity fails to
accept such designation, the Company may, with the consent of the
Stockholder, appoint a successor Trustee(s). A successor Trustee may
exercise all of the powers of the original Trustee hereunder and the term
"Trustee" as used in this Agreement and in the Voting Trust Certificate shall
apply to the original Trustee and to such successor Trustee(s).
Notwithstanding any change in the Trustee, the certificate(s) for Shares
standing in the name of the Trustee may be endorsed and transferred by any
successor Trustee(s) with the same effect as
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if endorsed or transferred by the original Trustee. The foregoing provisions
shall apply in the event of the death, incapacity or resignation of any such
successor Trustee as if he were the original Trustee.
12. ACCEPTANCE OF TRUST BY TRUSTEE.
12.1 ACCEPTANCE. The Trustee hereby accepts the above Trust,
subject to all the terms, conditions and reservations herein contained.
12.2 RESPONSIBILITY OF TRUSTEE. Except for personal acts of bad
faith or gross and willful negligence, the Trustee shall not incur any
liability by reason of an error of law or judgment, or for action taken by
him upon any certificate of stock or other documents believed by the Trustee
to be genuine and properly executed, or for any act or omission under this
Agreement or pursuant to the authorization conferred hereby.
13. RIGHT TO EXAMINE THIS TRUST AGREEMENT. A copy of this Trust
Agreement shall be filed at the principal office of the Company and the
registered office of the Company in Delaware and shall be open to the
inspection of any holder of common stock of the Company or any Voting Trust
Certificate holder during daily business hours.
14. MISCELLANEOUS.
14.1 SUCCESSORS AND ASSIGNS. This Trust Agreement shall be
binding upon, and shall operate for the benefit of, the parties and their
respective heirs, estates, successors and legal representatives and shall not
be assigned except as provided herein. No third party shall claim any
benefit hereunder.
14.2 EXECUTION IN COUNTERPARTS. This Trust Agreement may be
executed in any number of counterparts, each of which when executed and
delivered shall be an original, but all counterparts shall together
constitute one and the same instrument.
14.3 ENTIRE AGREEMENT. This Trust Agreement constitutes the
entire agreement between the parties hereto in respect of the subject matter
hereof and supersedes any and all other written or oral agreements,
documents, memoranda, understandings or otherwise between the parties
relating to such subject matter. This Trust Agreement may only be modified
in writing and such modification must be executed by all parties hereto.
Further, a copy of such modification or amendment shall be filed in the
registered office of the Company in Delaware.
14.4 TITLES NOT TO AFFECT INTERPRETATION. All sections,
paragraphs, descriptions and headings in this Trust Agreement and references
thereto are inserted for convenience only, and shall not affect the
construction or interpretation hereof. The provisions of this Trust Agreement
shall be construed without regard to authorship.
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14.5 CONTROLLING LAW AND VENUE. This Trust Agreement and all
rights and duties of the parties hereunder shall be governed by and
interpreted in accordance with the laws of the State of Delaware, without
regard to any conflict of laws rules of any jurisdiction. VENUE IN ANY ACTION
SHALL BE IN NEW CASTLE COUNTY, DELAWARE, AND THE PARTIES HERETO IRREVOCABLY
CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF THE STATE AND FEDERAL
COURTS IN SUCH VENUE. The provisions of this Paragraph 14.5 are intended by
the parties to comply with 6 DEL. C. Section 2708.
14.6 NOTICES. All notices or other Communications required or
permitted to be given under the terms of this Agreement shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid, addressed, as follows:
If to the Trustee: Xxxxxxx Xxxx
EXE Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Law Offices of Xxxxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Stockholder: Xxxxxxxx X. Xxxxx Hood
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
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with a copy to: Xxxx Xxxxxxx Xxxxxxx, Esq.
High, Xxxxxx, Xxxxxxx & Xxxxxx
00 X. Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such address or addresses and to the attention of such other person or
persons as any of the parties may notify the others in accordance with the
provisions of this paragraph. Notices or other communications shall be
effective when they are received by the party for whom they are intended.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Voting Trust
Agreement the day and year first above written.
STOCKHOLDER: TRUSTEE:
/s/ Xxxxxxxx X. Xxxxx Hood /s/ Xxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxxx Hood Xxxxxxx Xxxx
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EXHIBIT A
STOCKHOLDER CONSENT AND WAIVER
EXHIBIT B
THIS VOTING TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES ACT AND MAY BE
REOFFERED AND SOLD ONLY IF SO REGISTERED OR IF A EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
TRANSFER OF THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF SECTION 5
OF THE VOTING TRUST AGREEMENT PURSUANT TO WHICH THE SAME WAS ISSUED, COPIES
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY
AND AT THE REGISTERED OFFICE OF THE COMPANY IN THE STATE OF DELAWARE. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE TERMS AND
CONDITIONS OF A SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED
SEPTEMBER 29, 1999 AMONG THE COMPANY AND THE STOCKHOLDERS NAMED THEREIN, A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
THE SALE, TRANSFER OR OTHER DISPOSITION OF SUCH SECURITIES IS SUBJECT TO THE
TERMS OF SUCH AGREEMENT AND SUCH SECURITIES ARE TRANSFERABLE ONLY UPON PROOF
OF COMPLIANCE THEREWITH.
NO. 01 500,000 SHARES
EXE TECHNOLOGIES, INC.
VOTING TRUST CERTIFICATE
FOR COMMON STOCK
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THIS IS TO CERTIFY THAT there has been deposited, under the Voting
Trust Agreement hereinafter referred to, a certificate for 500,000 shares of
Class A Common Stock of EXE Technologies, Inc., a Delaware corporation (the
"Company") and that Xxxxxxxx X. Xxxxx Hood will be entitled to receive, as
hereinafter provided, the benefits specified in such Voting Trust Agreement
arising from the deposit of such shares. This certificate is issued pursuant
to, and the rights of the holder hereof are subject to, and the holder hereof
by accepting delivery hereof consents to the terms and conditions of, the
Voting Trust Agreement dated December ___, 1999 by and between Xxxxxxxx X.
Xxxxx Hood ("Stockholder") and Xxxxxxx Xxxx ("Trustee"), a copy of which is
on file at the registered office of the Company, and is open to the
inspection of the holder daily during business hours.
This certificate, together with the rights represented hereby, is
transferable only on the Voting Trust Certificate register of the Trustee by
the holder hereof in person or by his or her duly authorized attorney upon
surrender of this certificate properly endorsed and upon compliance with the
terms and conditions of the Voting Trust Agreement. Until actual delivery of
such stock certificates as hereinafter provided, the Trustee shall possess
and shall be entitled to exercise the voting and other rights as provided in
the Voting Trust Agreement, and it is being expressly stipulated that no such
right passes to the holder hereof by or under this certificate or by or under
any agreement express or implied.
This certificate is transferable on the books of the Trustee only as
provided in the Voting Trust Agreement, and, in particular, is not assignable
or transferable except as provided therein.
IN WITNESS WHEREOF, this certificate has been duly executed by the
Trustee.
Dated:
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Xxxxxxx Xxxx, Trustee
