**Exhibit10.1**

 

**EXETECHNOLOGIES, INC.**

 

FIRST AMENDMENT TOEMPLOYMENT AGREEMENT

 

This First Amendment toEmployment Agreement (this “Amendment”) is dated as of February 19, 2002, byand between Michael A. Burstein (the “Employee”) and EXE Technologies, Inc. (the“Company”) and amends that certain Employment Agreement dated as of August 9,1999 (the “Agreement”) between the Employee and the Company.

 

WHEREAS, since the execution of the Agreement,Employee’s duties, responsibilities and compensation have changed; and

 

WHEREAS, the parties desire to amend the Agreement to,among other things, reflect such changes, in accordance with the terms andconditions set forth below.

 

NOW, THEREFORE, in consideration of the mutualcovenants set forth herein and intending to be legally bound hereby, theparties agree as follows:

 

1.             Definitions.  All capitalized terms used in this Amendmentshall have the same meaning as those contained in the Agreement unlessotherwise defined herein.

 

2.             Section4.2.  Section 4.2 of the Agreementis hereby deleted in its entirety and replaced by the text below:

 

4.2           IncentiveCompensation Program.  The Employeeshall be entitled to participate in the Incentive Compensation Plan for 2002that has been established by the Company and any successor plans  (the “Incentive Program”) based upon theachievement of written corporate and individual objectives determined under theIncentive Program by the Employee’s Reporting Manager.  Under the Incentive Program the Employee’starget will be $175,000, of which at least 40% will be cash compensation and upto 60% will be incentive stock options to purchase the Company’s CommonStock.  The relative percentages betweencash and options will be determined by the Company in its discretion for eachpayment; provided that any payments in options must apply in an equalpercentage for all other participating executive officers.  If any payment is made in options, then theCompany will value the options based upon the formula adopted by the Companyfor use with other participating executive officers to value options under theIncentive Program.  The Employee’sactual payments under the Incentive Program will vary depending on Company andindividual performance and will be payable quarterly in accordance with the Company’snormal practices.

 

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3.             Section4.3(a).  Section 4.3(a) is herebydeleted in its entirety and replaced with the following:

 

4.3(a)      TheEmployee acknowledges that the Company granted the Employee the stock optionslisted on Schedule B hereto, with the exercise prices and, subject to Section4.3(d) below, vesting schedule listed on Schedule B hereto. The options shallbe subject to and in accordance with the provisions of the Amended and Restated1997 Stock Option Plan of the Company (the “Plan”), as then in effect.

 

4.             Sections4.3(d) and (e).  New Sections 4.3(d)and (e) are added as follows:

 

(d)  All ofEmployee’s stock options, whenever granted by the Company, shall immediatelyvest upon the termination date in the event that the Employee’s employment withthe Company is terminated due to death or Disability (as hereinafter defined).

 

(e)  IfEmployee’s employment is terminated prior to July 1, 2002 (except in the caseof voluntary termination on any date prior to June 30, 2002 and except in thecase of termination for cause), all of Employee’s then-vested option grants,whenever granted by the Company, shall be deemed amended to allow forpost-termination exercise through the second business day after the Company’sfinal earnings press release for the fourth quarter of 2002.

 

5.             Section4.6.  A new Section 4.6 is herebyadded as follows:

 

4.6.          Loan.  The Company has loaned the Employee twohundred fifty thousand dollars ($250,000.00) (the “Loan”), evidenced by apromissory note.  The Loan shall becomedue and payable upon the fourth anniversary of the Loan and interest shall bepayable annually at a rate of eight and one half percent (8.5%); provided,however, that notwithstanding any other provisions of this Agreement to thecontrary, provided that (i) Employee does not voluntarily leave the Companyprior to June 30, 2002 and (ii) Employee is not terminated on or prior to thatdate for cause, then the unpaid amount thereof, including accrued interest,shall be forgiven by the Company, effective July 1, 2002.  Employee shall be solely responsible for thetax consequences of any such forgiveness. As security for the Loan, the Employee has entered into a Stock PledgeAgreement pursuant to which the Employee has pledged to the Company 25,000shares of the Common Stock of the Company underlying options held by theEmployee.  The Loan is being made tofacilitate the Employee’s other financial commitments and not to purchase anyadditional capital stock of the Company.

 

6.             Schedules.  Schedules A and B of the Agreement arehereby deleted in their entirety and are replaced by Schedule A and B,respectively, attached hereto.

 

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7.             Section8.1.  Section 8.1 (including theparagraph preceding Section 8.1) of the Agreement is hereby deleted in itsentirety and replaced with the following:

 

Terminationof Employment.   The Employee’s employment hereunder may beterminated upon the occurrence of any one of the events described in thisSection 8.  Upon termination of theEmployee’s employment, the Employee shall be entitled only to such compensationand benefits as described in this Section 8.

 

8.1           Terminationfor Disability.

 

(a)           Inthe event of the disability of the Employee such that the Employee is unable toperform the duties and responsibilities hereunder to the full extent requiredby this Agreement by reasons of illness, injury or incapacity for a period ofmore than sixty (60)  consecutive daysor more than forty-five (45) days, in the aggregate, during any ninety (90) dayperiod (“Disability”), the Employee’s employment hereunder may be terminated bythe Company.

 

(b)           Inthe event of a termination of the Employee’s employment hereunder pursuant toSection 8.1(a), the Employee will be entitled to receive (i) all accrued andunpaid (as of the date of such termination) portion of Base Salary and otherforms of compensation and benefits payable or provided in accordance with theterms of any then existing compensation or benefit plan or arrangement,including payment prescribed under any disability or life insurance plan orarrangement in which he/she is a participant or to which he/she is a party asan employee of the Company; (ii) continuation of the Base Salary then in effectas of the date of such termination for a period of twelve (12) months followingthe date of termination, payable in the Company’s standard payroll cycle; and(iii) the Employee’s bonus for the twelve (12) month period specified in8.1(ii) above, in an amount equal to (A) the percentage of annualized targetbonus actually received in the aggregate by the Employee for the final fullyserved four (4) calendar quarters, multiplied by (B) the Employee’s currentannualized target bonus on the date of termination, which bonus shall be paidin a lump-sum thirty (30) days following the date of termination; provided thatthe Employee has complied with all of his/her obligations under this Agreementand continues to comply with all of his/her surviving obligations hereunderlisted in Section 10.  Except asspecifically set forth in this Section 8.1(b), the Company shall have noliability or obligation to the Employee for compensation or benefits hereunderby reason of such termination.

 

8.             Section 8.2. Section 8.2 of the Agreement is hereby deleted in its entirety andreplaced by the text below:

 

8.2             Termination by Death.  In the event that the Employee dies duringthe Term, the Employee’s employment hereunder shall be terminated thereby andthe Company shall pay to the Employee’s executors, legal representatives oradministrators an amount equal to: (i) the accrued and unpaid (as of the dateof such termination) portion of the Base Salary and other compensation; (ii)continuation of the Base Salary then in effect as of the date of such

 

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termination for a period of twelve (12) months following the date oftermination, payable in the Company’s standard payroll cycle; and (iii) theEmployee’s bonus for the twelve (12) month period specified in 8.2(ii) above,in an amount equal to (A) the percentage of annualized target bonus actuallyreceived in the aggregate by the Employee for the final fully served four (4)calendar quarters, multiplied by (B) the Employee’s current annualized targetbonus on the date of termination, which bonus shall be paid in a lump-sumthirty (30) days following the date of termination; provided that the Employeehas complied with all of his/her obligations under this Agreement and continuesto comply with all of his/her surviving obligations hereunder listed in Section10.  Except as specifically set forth inthis Section 8.2, the Company shall have no liability or obligation to theEmployee for compensation or benefits hereunder by reason of suchtermination.  Except as specifically setforth in this Section 8.2, the Company shall have no liability or obligationhereunder to the Employee’s executors, legal representatives, administrators,heirs or assigns or any other person claiming under or through him/her byreason of the Employee’s death, except that the Employee’s executors, legalrepresentatives or administrators will be entitled to receive the paymentprescribed under any death or disability benefits plan in which he/she is aparticipant as an employee of the Company, and to exercise any rights affordedunder any compensation or benefit plan then in effect.

 

9.             Section 8.4. Section 8.4 of the Agreement is hereby deleted in its entirety andreplaced by the text below:

 

8.4             Termination Without Cause byEither Party.

 

(a)           Subjectto Sections 4.3(e) and 4.6, either party may terminate the Employee’semployment hereunder during the Term, for any reason, without cause, effectiveupon the date designated by the terminating party, with a minimum of thirty(30) days’ written notice.

 

(b)           Inthe event of a termination of the Employee’s employment hereunder pursuant toSection 8.4(a) by the Company, the Employee shall be entitled to receive allaccrued (as of the effective date of the Employee’s termination) but unpaidBase Salary, benefits and bonuses. The amounts to be paid to Employee under thepreceding sentence shall be paid in accordance with the Company’s normalpayroll and incentive compensation distribution cycle then in effect.  In addition, in the event of a terminationof the Employee’s employment hereunder pursuant to Section 8.4(a) by theCompany prior to June 30, 2002, Employee will receive continuation of the BaseSalary then in effect as of the date of such termination through June 30,2002.  Except as specifically set forth inthis Section 8.4(b), the Company shall have no liability or obligation to theEmployee for compensation or benefits hereunder by reason of suchtermination.  Employee acknowledgesthat, as a condition to participation in such severance plan, Employee mustcomplete in good faith such employee exit forms then in use by the Company atthe time Employee’s employment is terminated and acknowledge in writing on suchforms then in use by the Company, Employee’s obligations to the Companyincluding, but not limited to, Employee’s obligations with respect toconfidentiality and Company property set forth in Sections 5 and 6 hereof andEmployee’s obligations with respect to the Covenant not to Compete set forth inSection 7 hereof.  All Base Salary,benefits and bonuses shall cease at the time of

 

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such termination, subject to the terms of any benefit or compensationplan then in force and applicable to the Employee.  Except as specifically set forth in this Section 8.4, the Companyshall have no liability or obligation hereunder by reason of such termination.

 

(c)           Theprovisions regarding (i) Termination Without Cause and (ii) Termination WithoutCause or for Good Reason within 12 months of a Change of Control, previouslyapproved by the Compensation Committee of the Board of Directors, shall notapply unless Employee continues in the employment of the Company beyond June30, 2002, in which case the parties shall negotiate an additional amendment tothe Agreement to reflect such terms.

 

10.                                 Section8.5.  Section 8.5 of the Agreementis hereby deleted in its entirety and replaced by the text below:

 

8.5           **Reserved.**

 

11.                                       Section8.6.  Section 8.6 of the Agreementis hereby deleted in its entirety and replaced by the text below:

 

8.6           Exceptas otherwise provided in this Agreement, upon the termination of the Employee’semployment pursuant to this Section 8 for any reason, all further vesting onall stock options and/or restricted stock in the Company held by the Employeeshall immediately cease as of such date and thereafter any vested stock optionsshall be exercisable and any restricted stock or other equity securities heldby the Employee shall be subject to repurchase by the Company in accordancewith their respective terms and the terms of any related agreements between theCompany and the Employee.

 

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12.           Miscellaneous.  The Agreement shall remain in full force andeffect, subject only to the changes herein specified.  The Agreement, as modified by this Amendment, constitutes theentire understanding between the parties with respect to the subject matterhereof and supersedes any prior understandings and/or written or oralagreements between them.  All referencesto the Agreement in any other documents shall mean the Agreement as amendedhereby and from time to time hereafter in writing.  This Amendment shall be governed by the laws of the State ofTexas, without regard to the principles of conflicts of laws of any jurisdiction.

 

IN WITNESS WHEREOF, theparties have executed this Amendment as of the date first above written.

 
| EMPLOYEE:               | EXE TECHNOLOGIES, INC.                            |
|-------------------------|---------------------------------------------------|
|                    |                                              |   |
| /s/ Michael A. Burstein |                                              | /s/  Raymond R. Hood |   |
|                    |                                              |   |
|                    |                                              |   |
|                    | By:  Raymond R. Hood                         |
| Michael A. Burstein     |                                              |   |
|                    | Title:  Chairman and Chief Executive Officer |
|                         |                                                   |  |  |  |  |  |

 

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**SCHEDULE A**

 

# **EMPLOYMENTand COMPENSATION**

 

| **Position:**                    |   | **Senior Vice President, Finance, Chief Financial Officer  and Treasurer**                                                  |
|----------------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------|
|                             |   |                                                                                                                        |
| **Reporting  Manager:**          |   | President & CEO                                                                                                         |
|                             |   |                                                                                                                        |
| **Initial Base Monthly Salary:** |   | **$12,500 per month**                                                                                                       |
|                             |   |                                                                                                                        |
| **Current  Base Annual Salary:** |   | $225,000                                                                                                                    |
|                             |   |                                                                                                                        |
| **ICP:**                         |   | Subject to Section 4.2, eligible for up to $175,000  based upon successful Company performance under the Incentive Program. |
|                             |   |                                                                                                                        |
| **Responsibilities:**            |   | Job Description to be added                                                                                                 |

 

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**SCHEDULE B**

 

#### **OPTION VESTING SCHEDULE**

 

**InitialStock Option Grant:**

 

**Astock option to purchase 40,000 shares of Common Stock of the Company wasgranted to the Employee on October 1, 1999. The exercise price is $3.00 per share. The vesting will be as follows:**

 

(a)  10,000shares on August 1, 2000;

 

(b)  10,000 shares on August 1,2001;

 

(c)  10,000 shares on August 1,2002; and

 

(d)  10,000 shares on August 1,2003.

 

**SecondStock Option Grant:**

 

**Astock option to purchase 60,000 shares of Common Stock of the Company wasgranted to the Employee on January 12, 2000. The exercise price is $3.00 per share. The vesting will be as follows:**

 

(a)  15,000shares on the date of grant;

 

(b)  15,000shares on the first anniversary of the date of grant;

 

(c)  15,000 shares on the secondanniversary of the date of grant; and

 

(d)  15,000 shares on the thirdanniversary of the date of grant.

 

**ThirdStock Option Grant:**

 

**Astock option to purchase 80,000 shares of Common Stock of the Company wasgranted to the Employee on May 3, 2000. The exercise price is $7.50 per share. The vesting is as follows:**

 

(a)  20,000shares on the date of grant;

 

(b)  20,000 shares on the firstanniversary of the date of grant;

 

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(c)  20,000 shares on the secondanniversary of the date of grant; and

 

(d)  20,000 shares on the thirdanniversary of the date of grant.

 

**FourthStock Option Grant**:

 

A stock option to purchase 120,000 shares of Common Stock of theCompany was granted to the Employee on August 3, 2000.  The exercise price is $8.00 per share.  The vesting is as follows:

 

(a)  30,000 shares on the first anniversary ofthe date of grant;

 

(b)  30,000 shares on the second anniversary ofthe date of grant;

 

(c)  30,000 shares on the third anniversary ofthe date of grant; and

 

(d)  30,000 shares on the fourth anniversary ofthe date of grant.

 

**FifthStock Option Grant**:

 

A stock option to purchase 100,000 shares of Common Stock of theCompany was granted to the Employee on October 23, 2001.  The exercise price is $2.00 per share.  The vesting is as follows:

 

36 equal monthly installments on the last day of each month beginningOctober 31, 2001.

 

**SixthStock Option Grant**:

 

A stock option to purchase 100,000 shares of Common Stock of theCompany was granted to the Employee on February 19, 2002.  The exercise price is $2.05 per share.  The vesting is as follows:

 

12 equal monthly installments on the last day of each month beginningJanuary 31, 2002.

 

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