###### **Exhibit 10.2**

 

 

**EXE TECHNOLOGIES, INC.**

**1997 INCENTIVE AND NON-QUALIFIED**

**STOCK OPTION PLAN**

 

**As Amended and Restated February 6, 2001; and**

**As Amended May 30, 2002**

 

 

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**EXE TECHNOLOGIES, INC.**

**1997 INCENTIVE AND NON-QUALIFIED**

**STOCK OPTION PLAN**

 

Section 1.  Name and Purposesof the Plan.

 

(a)           Name.  The Plan will be known as the EXETechnologies, Inc. 1997 Incentive and Non-Qualified Stock Option Plan.

 

(b)           Purposes.  The purpose of the Plan is to provide keyEmployees and Consultants with an opportunity to share in the capitalappreciation of the Common Stock of the Company. The Options granted pursuantto the Plan are intended to constitute either Incentive Stock Options orNon-Qualified Stock Options, as determined by the Administrator of the Plan atthe time of grant.

 

Section 2.  Definitions.  As used herein, the following definitionsshall apply:

 

(a)           “Administrator”shall be the Board or a Committee appointed by the Board pursuant to Section 3of the Plan, which shall administer the Plan.

 

(b)           “Affiliate”shall mean, whether now or hereafter existing, a person or entity thatdirectly, or indirectly controls or is controlled by, or is under commoncontrol with, the Company, except that when used in connection with anIncentive Stock Option, “Affiliate” shall mean a Subsidiary.

 

(c)           “Board”shall mean the Board of Directors of the Company, as constituted from time totime.

 

(d)           “Changeof Control” shall mean the happening of an event (excluding a PublicOffering) that shall be deemed to have occurred upon the earliest to occur ofthe following events:

 

(i)            thedate the stockholders of the Company (or the Board, if stockholder action isnot required) approve a plan or other arrangement pursuant to which the Companywill be dissolved or liquidated;

 

(ii)           thedate the stockholders of the Company (or the Board, if stockholder action isnot required) approve a definitive agreement to sell or otherwise dispose ofall or substantially all of the assets of the Company;

 

(iii)          thedate the stockholders of the Company (or the Board, if stockholder action isnot required) and the stockholders of the other constituent corporations (ortheir respective boards of directors, if and to the extent that stockholderaction is not required) have approved a definitive agreement to merge orconsolidate the Company with or into another corporation, other than, in eithercase, a merger or consolidation of the Company in which holders of shares ofthe Company’s voting capital stock immediately prior to the merger or

 

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consolidation will have at least fifty percent (50%) of the ownershipof voting capital stock of the surviving corporation immediately after themerger or consolidation (on a fully diluted basis), which voting capital stockis to be held by each such holder in the same or substantially similarproportion (on a fully diluted basis) as such holder’s ownership of votingcapital stock of the Company immediately before the merger or consolidation;

 

(iv)          thedate any entity, person or group (within the meaning of Section 13(d)(3) orSection 14(d)(2) of the Exchange Act), other than (A) the Company, (B) any ofits Subsidiaries, (C) any of the holders of the capital stock of the Company,as determined on the date that this Plan is adopted by the Board, (D) anyemployee benefit plan (or related trust) sponsored or maintained by the Companyor any of its Subsidiaries or (E) any Affiliate of any of the foregoing, shallhave acquired beneficial ownership of, or shall have acquired voting controlover more than fifty percent (50%) of the outstanding shares of the Company’svoting capital stock (on a fully diluted basis), unless the transactionpursuant to which such person, entity or group acquired such beneficialownership or control resulted from the original issuance by the Company of sharesof its voting capital stock and was approved by at least a majority ofdirectors who shall have been members of the Board for at least twelve (12)months prior to the date of such approval;

 

(v)           thefirst day after the date of this Plan when directors are elected such thatthere shall have been a change in the composition of the Board such that amajority of the Board shall have been members of the Board for less than twelve(12) months, unless the nomination for election of each new director who was nota director at the beginning of such twelve (12) month period was approved by avote of at least sixty percent (60%) of the directors then still in office whowere directors at the beginning of such period; or

 

(vi)          thedate upon which the Board determines (in its sole discretion) that based onthen current available information, the events described in clause (iv) arereasonably likely to occur.

 

(e)           “Code”shall mean the Internal Revenue Code of 1986, as amended from time to time, andany successor thereto.

 

(f)            “Committee”shall mean a Committee appointed by the Board in accordance with Section 3(a)of the Plan, if one is appointed, in which event the Committee or Committees,as the case may be, shall possess the power and authority of the Board with respectto the Plan as set forth in Section 3(b) of the Plan.

 

(g)           “CommonStock” shall mean the Common Stock, $.01 par value per share, of theCompany.

 

(h)           “Company”shall mean EXE Technologies, Inc., a Delaware corporation, and any successor ininterest that agrees to assume and maintain the Plan.

 

(i)            “Consultant”shall mean any person associated with the Company or a Subsidiary who isengaged by the Company or a Subsidiary to render services and is compensated bythe

 

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Company or Subsidiary for such services, including but not limited to,an advisor or independent contractor, but excluding any director who is not anEmployee.

 

(j)            “Disability”or “Disabled” with respect to an Optionee shall mean (i) when theOptionee is determined to be disabled within the meaning of any long-termdisability policy or program sponsored by the Company covering the Optionee, asin effect as of the date of such determination, or (ii) if no such policy orprogram shall be in effect, when the Optionee is unable to engage in anysubstantial gainful activity by reason of a physical or mental impairment thatcan be expected to result in death or that has lasted or can be expected tolast for a continuous period of not less than twelve (12) months.  The determination of whether an Optionee isDisabled pursuant to subparagraph (ii) shall be determined by theAdministrator, whose determination shall be conclusive; provided that:(A) if an Optionee is bound by the terms of an executive EmploymentAgreement between the Optionee and the Company, then whether the Optionee is“Disabled” for purposes of the Plan shall be determined in accordance with theprocedures set forth in said Employment Agreement, if such procedures aretherein provided; and (B) an Optionee bound by such an EmploymentAgreement shall not be determined to be Disabled under the Plan any earlierthan he or she would be determined to be disabled under his or her EmploymentAgreement.

 

(k)           “Employee”shall mean any person employed by the Company or any Subsidiary of the Company.

 

(l)            “ExchangeAct” shall mean the Securities Exchange Act of 1934, as amended.

 

(m)          “FairMarket Value” shall mean, as of any date, the fair market value of a shareof Common Stock as determined pursuant to Section 7 hereof.

 

(n)           “IncentiveStock Option” shall mean any Option that is intended to be and isdesignated as an incentive stock option within the meaning of Section 422 ofthe Code.

 

(o)           “Non-EmployeeDirector” shall have the meaning set forth in Rule 16b-3(b)(3)(i)promulgated by the Securities and Exchange Commission under the Exchange Act,or any successor definition adopted by the Securities and Exchange Commission;provided, however, that the Administrator may, to the extent the Administratordeems it necessary or desirable to comply with Section 162(m) of the Code andapplicable regulations thereunder, ensure that each Non-Employee Director alsoqualifies as an “outside director” as that term is defined in the regulationsunder Section 162(m) of the Code.

 

(p)           “Non-QualifiedStock Option” shall mean any Option that is not intended to or does notqualify as an Incentive Stock Option.

 

(q)           “Option”shall mean an Incentive Stock Option or a Non-Qualified Stock Option, as thecase may be, granted pursuant to the Plan.

 

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(r)            “OptionAgreement” shall mean the written agreement by and between the Company andan Optionee under which Optionee may purchase the Shares pursuant to theexercise of an Option.

 

(s)           “Optionee”shall mean an Employee or Consultant to whom an Option is granted.

 

(t)            “Plan”shall mean this EXE Technologies, Inc. 1997 Incentive and Non-Qualified StockOption Plan, as amended from time to time.

 

(u)           “PublicOffering” shall mean the consummation of a firm commitment underwrittenpublic offering of equity securities of the Company registered under theSecurities Act.

 

(v)           “Saleof the Company” shall mean the earliest of: (i) the closing of a sale,transfer or other disposition of all or substantially all of the shares of thecapital stock then outstanding of the Company (except if such transferee isthen an Affiliate); (ii) the closing of a sale, transfer or other dispositionof all or substantially all of the assets of the Company (except if suchtransferee is then an Affiliate); or (iii) the merger or consolidation of theCompany with or into another corporation (except an Affiliate), other than amerger or consolidation of the Company in which the holders of shares of theCompany’s voting capital stock outstanding immediately before such merger orconsolidation hold greater than fifty percent (50%) of the surviving entity’svoting capital stock after such consolidation or merger.

 

(w)          “SecuritiesAct” shall mean the Securities Act of 1933, as amended.

 

(x)           “Share”or “Shares” shall mean a share or shares of Common Stock, as adjusted inaccordance with Section 8 of the Plan, that is allocated to the Plan.

 

(y)           “Subsidiary”shall mean, whether now or hereafter existing, a subsidiary or parentcorporation of the Company as such term is defined in Sections 424(e), (f) and(g) of the Code.

 

(z)           “VestedAmount” shall mean, with respect to each Option, a percentage of the sharesfor which the Option has become exercisable (subject to the further terms ofthe Plan) by application of the schedule set forth in Section 4(b).

 

Section 3.  Administration.

 

(a)           Procedure.The Plan shall be administered by the Board and/or by one or more Committees,each of which shall consist of not less than two (2) persons appointed by theBoard.  In the event the Company has aclass of equity securities registered under the Exchange Act, the Board shalladminister the Plan; provided that it may appoint one or more Committees inaccordance with Section 3(b).

 

(b)           Committees.  If one or more Committees are appointed bythe Board, then the Committees shall possess the power and authority of theBoard in administering the Plan on behalf of the Board, subject to such termsand conditions as the Board may prescribe, which

 

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conditionsmay state that the Committee shall have administrative authority with respectto only a prescribed group of individuals eligible for Options under the Plan.

 

Members of a Committee shall be members of the Board and shall servefor such period of time as the Board may determine.  From time to time, the Board may increase the size of a Committeeand appoint additional members thereto, remove members (with or without cause)and appoint new members in substitution therefore, fill vacancies howevercaused, or remove all members of a Committee and thereafter directly administerthe Plan.  Notwithstanding theforegoing, in the event the Company has a class of equity securities registeredunder the Exchange Act, any Committee that grants Options to individuals whoare covered employees pursuant to section 162(m) of the Code and theregulations thereunder, and/or to individuals who are directors, officers orprincipal stockholders as determined pursuant to Section 16 of the ExchangeAct, shall be composed solely of two (2) or more Non-Employee Directors.

 

(c)           Powersof the Administrator.  Subject tothe provisions of the Plan (and, in the case of the Committee, the specificduties delegated by the Board to such Committee), the Administrator shall havethe authority, in its sole discretion:

 

(1)           to determine whetherand to what extent Options are granted hereunder;

 

(2)           to determine theFair Market Value of the Common Stock based upon review of relevant informationand in accordance with Section 7 of the Plan;

 

(3)           to determine theexercise price of the Options in accordance with Section 6(b) of the Plan;

 

(4)           to select theOptionees to whom Options may from time to time be granted;

 

(5)           to determine thenumber of Shares to be subject to each Option granted hereunder;

 

(6)           to prescribe, amendand rescind rules and regulations relating to the Plan;

 

(7)           to determine theterms and provisions of each Option granted under the Plan, each OptionAgreement and each other agreement that in the sole discretion of theAdministrator may be required (all of which agreements need not be identicalwith the terms of other Options, Option Agreements or other agreements);

 

(8)           to determine thecircumstances under which the vesting or exercise date of an Option will beaccelerated;

 

(9)           to interpret thePlan or any agreement entered into with respect to the grant or exercise ofOptions;

 

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(10)         to authorize anyperson to execute on behalf of the Company any instrument required toeffectuate the grant of an Option previously granted by the Administrator or totake such other actions as may be necessary or appropriate with respect to theCompany’s rights pursuant to Options or agreements relating to the granting orexercise thereof;

 

(11)         to determine whetherand under what circumstances an Option may be exercised without a payment ofcash under Section 6(c) hereof;

 

(12)         to terminate the Planin the event of a Change of Control; and

 

(13)         to make such otherdeterminations and establish such other procedures as it deems necessary oradvisable for the administration of the Plan.

 

(d)           Effectof the Administrator’s Decision. All decisions, determinations and interpretations of the Administratorpursuant to the provisions of the Plan shall be final and binding on allOptionees and any other holders of Options.

 

(e)           Limitationof Liability.  Notwithstandinganything herein to the contrary, no member of the Board or the Committee shall beliable for any good faith determination, act or failure to act in connectionwith the Plan or any Option awarded hereunder.

 

Section 4.  Eligibility.

 

(a)           EligiblePersons.  Options may be granted atany time and from time to time to any Employee or Consultant who shall beselected by the Administrator.  Anygrant of Options may include or exclude any Employee or Consultant as theAdministrator shall determine in its sole discretion.  Consultants who are not also Employees of the Company areeligible to be granted Non-Qualified Stock Options under the Plan but are noteligible to be granted Incentive Stock Options under the Plan.

 

(b)           Vestingand Exercisability of Options. Subject to the provisions of Section 6 hereof and except to the extent the Administrator providesotherwise, each Option shall vest and become exercisable as follows:  (i) 25% of the Option shall vest on thefirst anniversary of the date of grant; and (ii) the remaining 75% shall vestat a rate of 2.083% of the Option on the last day of each month after the firstanniversary of the date of grant, with the number of shares vesting each monthdetermined by rounding up to the nearest whole number of shares.

 

The Administrator may, but need not, determine that the Vested Amountof each Option shall be exercisable only upon the earlier to occur of: (i) theconsummation of a Public Offering; or (ii) the consummation of a Sale of theCompany. The unvested portion of each Option may not be exercised.  In addition, as specified in Section 3(c)(8),the Administrator may determine the circumstances under which the vesting orexercise date of an Option will be accelerated.

 

(c)           EffectUpon Engagement.  The Plan will notconfer upon any Optionee any right with respect to the continuation of anyemployment, consulting or any other relationship with the Company nor will itinterfere in any way with such Optionee’s right or the Company’s right to

 

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terminatethat Optionee’s employment, consulting or other relationship with the Companyat any time, whether with or without cause.

 

Section 5.  Stock Subject tothe Plan.

 

(a)           MaximumNumber of Shares. Subject to the provisions of Section 8 of the Plan, themaximum aggregate number of Shares which may be optioned and sold under thePlan is Twelve Million (12,000,000) Shares. The Shares may be authorized, but unissued or reacquired, CommonStock.  In the event the Company has aclass of equity securities registered under the Exchange Act, the maximumnumber of Shares with respect to which Options may be granted under the Plan toany Employee during any calendar year is One Million (1,000,000) Shares.

 

(b)           Returnof Shares to the Plan.  If an Optionexpires, is terminated or becomes unexercisable for any reason without havingbeen exercised in full, then the unpurchased Shares subject thereto shall,unless the Plan shall have been terminated, return to the Plan and becomeavailable for future grant under the Plan.

 

Section 6.  Terms andConditions of Options.

 

Each Option granted under the Plan shall be authorized by theAdministrator and shall be evidenced by an Option Agreement, which shall stateor incorporate by reference all other terms and conditions of the Planincluding, without limitation, the following terms and conditions:

 

(a)          Numberof Shares.  The Option Agreementshall state the number of Shares subject to the Option.

 

(b)           OptionExercise Price.  The per Shareexercise price for the Shares to be issued pursuant to the exercise of anIncentive Stock Option shall be stated in the Option Agreement and shall be noless than the Fair Market Value per share of the Common Stock on the date suchOption is granted, without regard to any restriction other than a restrictionthat by its terms will never lapse; provided, however, that any Incentive StockOption granted under this Plan to an Employee who, at the time such Option isgranted, owns more than ten percent (10%) of the current total combined votingpower of all classes of the capital stock of the Company, shall have anexercise price per Share of not less than one hundred ten percent (110%) of theFair Market Value of the Common Stock on the date such Option is granted.  The per Share exercise price for the Sharesto be issued pursuant to the exercise of a Non-Qualified Stock Option shall bestated in the Option Agreement and shall be determined by the Administrator butshall be at least $.01 per Share.

 

(c)           Consideration.  The consideration to be paid for the Sharesto be issued upon the exercise of an Option, including the method of payment,shall be determined by the Administrator and may consist entirely of: (i) cash;(ii) check; or (iii) such other consideration and method of payment as theAdministrator may from time to time determine. In making its determination as to the type of consideration to accept,the Administrator shall consider if the acceptance of such consideration may bereasonably expected to benefit the Company.

 

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(d)           Formof Option.  The Option Agreementshall state whether the Option granted thereunder is intended to be anIncentive Stock Option or a Non-Qualified Stock Option.

 

(e)           Exerciseof an Option.

 

(1)           Unless otherwiseprovided by the Administrator, the Vested Amount of any Option grantedhereunder shall be exercisable, in whole or in part, at such times and undersuch further conditions as may be determined by the Administrator and as setforth in the Option Agreement.

 

(2)           An Option may not beexercised for a fraction of a Share.

 

(3)           An Option may not beexercised after the date of expiration of its term as shall be set forth in theOption Agreement.

 

(4)           An Option shall bedeemed to have been exercised when written notice of such exercise has beenreceived by the Company at its principal executive office in accordance withthe terms of the Option Agreement by the person entitled to exercise theOption, and full payment for the Shares with respect to which the Option is tobe exercised has been received by the Company, accompanied by any agreementsrequired by the Administrator or the terms of the Plan and/or OptionAgreement.  An Optionee shall have noright to vote or receive dividends and shall have no other rights as astockholder with respect to the Shares, notwithstanding the exercise of theOption, until the issuance (as evidenced by the appropriate entry on the booksof the Company or of a duly authorized transfer agent of the Company) of thestock Certificate evidencing such Shares. No adjustment shall be made for a dividend or other right for which therecord date is prior to the date a stock Certificate with respect to the Sharesis issued.

 

(5)           As soon aspracticable after the proper exercise of an Option in accordance with theprovisions of the Plan, the Company shall, without transfer or issue tax to theOptionee, deliver to the Optionee at the principal executive office of theCompany or such other place as shall be mutually agreed upon between theCompany and the Optionee, a Certificate or Certificates representing the Sharesfor which the Option shall have been exercised.  The time of issuance and delivery of the Certificate(s)representing the Shares for which the Option shall have been exercised may bepostponed by the Company for such period as may be required by the Company,with reasonable diligence, to comply with any applicable listing requirementsof any national or regional securities exchange or any law or regulationapplicable to the issuance or delivery of such Shares.

 

(6)           The exercise of anOption in any manner shall result in a decrease in the number of Shares thatthereafter may be available both for purposes of the Plan and for sale underthe Option by the number of Shares as to which the Option is exercised.

 

(f)            Terminationof Options.

 

(1)           Termination inGeneral.  Unless sooner terminatedas provided in this Plan, each Option shall be exercisable for the period oftime as shall be determined by the

 

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Administratorand set forth in the Option Agreement and shall be void and unexercisablethereafter.

 

(2)           Termination ofRelationship with the Company. Unless sooner terminated as provided in this Plan, in the event of thetermination of an Optionee’s employment or consulting relationship with theCompany (as the case may be) for any reason other than the death or Disabilityof the Optionee, such Optionee may, within three (3) months (or such otherperiod of time as is determined by the Administrator) from the date of suchtermination (but in no event later than the expiration date of the term of suchOption as set forth in the Option Agreement), exercise the Option up to theVested Amount as of the date of termination, but only to the extent that theOptionee was entitled to exercise the Option on the date of suchtermination.  To the extent the Optioneewas not entitled to exercise the Option on the date of such termination, or ifthe Optionee does not exercise such Option to the extent so entitled within thetime specified herein, the Option will terminate.

 

(3)           Death orDisability.  Unless soonerterminated as provided in this Plan, in the event of the death or Disability ofan Optionee while employed or engaged by the Company (as the case may be),Options held by such Optionee that are exercisable on the date of Disability ordeath shall be exercisable up to the Vested Amount as of the date of Disabilityor death for a period of twelve (12) months commencing on the date of theOptionee’s Disability or death.  Such Optionsmay be exercisable by the Optionee or his or her legal guardian orrepresentative or, in the case of death, by his or her executor(s) oradministrator(s); provided, however, if such disabled Optionee shall commenceany employment or engagement during such twelve (12) month period with or by acompetitor of the Company  (including,but not limited to, full or part-time employment or independent consultingwork), as determined solely in the judgment of the Administrator, then allOptions held by such Optionee that have not yet been exercised shall terminateimmediately upon the commencement thereof.

 

(4)           Agreement toTerminate.  Options may beterminated at any time by agreement between the Company and the Optionee.

 

(g)           Other Provisions.

 

(1)           Notwithstanding anyprovision in this Plan or an Option Agreement to the contrary, no Optiongranted to any Optionee under this Plan shall be treated as an Incentive StockOption to the extent that such Option would cause the aggregate Fair MarketValue of all Shares with respect to which Incentive Stock Options areexercisable by such Optionee for the first time during any calendar year(determined as of the date of grant of each such Option) to exceed$100,000.  For purposes of determiningwhether an Incentive Stock Option granted to an Optionee would cause theaggregate Fair Market Value to exceed the $100,000 limitation, such IncentiveStock Options shall be taken into account in the order granted.  For purposes of this subsection, IncentiveStock Options granted to an Optionee shall include all incentive stock optionsunder all plans of the Company or any Subsidiary that are incentive stockoption plans within the meaning of Section 422 of the Code.  Options may be exercised in any orderelected by the Optionee, whether or not the Optionee holds any unexercisedOptions under this Plan or any other plan of the Company.

 

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(2)           Notwithstanding anyother provision of this Plan or an Option Agreement to the contrary, no Optionshall be (A) granted under this Plan after ten (10) years from the date onwhich this Plan is adopted by the Administrator, or (B) exercisable more thanten (10) years from the date of grant; provided that if an Incentive StockOption shall be granted under this Plan to any Employee who, at the time of thegrant of such Option, owns stock possessing more than ten percent (10%) of thetotal combined voting power for all classes of the Company’s capital stock, theforegoing clause (B) shall be deemed modified by substituting the term “five (5)years” for the term “ten (10) years” that appears therein.

 

Section 7.  Fair Market Valueof Common Stock.

 

The Fair Market Value of a Share of Common Stock, as of any date, shallbe determined as follows:

 

(a)           If the Shares ofCommon Stock are listed on a national or regional securities exchange or tradedthrough NASDAQ/NMS, then the Fair Market Value of a share of Common Stock shallbe the closing price for a share of Common Stock on the exchange or onNASDAQ/NMS, as reported in The Wall Street Journal or such other sourceas the Administrator deems reliable on the relevant valuation date, or if thereis no trading on that date, on the next trading date.

 

(b)           If the Shares ofCommon Stock are traded in the over-the-counter market, then the Fair Market Valueof a share of Common Stock shall be the mean of the bid and asked prices for ashare of Common Stock on the relevant valuation date as reported in The WallStreet Journal or other source the Administrator deems reliable (or, if notso reported, as otherwise reported by the National Association of SecuritiesDealers Automated Quotations (“NASDAQ”) System or the NASD OTC Bulletin Board),or if there is no trading on such date, on the next trading date.

 

(c)           In the absence of anestablished market for the Common Stock, the Fair Market Value of a share ofCommon Stock shall be determined by the Board in its sole discretion.

 

Section 8.  Adjustments.

 

(a)           Adjustments.  Subject to any required action by thestockholders of the Company, the number of Shares covered by each outstandingOption, the number of Shares that have been authorized for issuance under thePlan but as to which no Options have yet been granted or that have beenreturned to the Plan upon cancellation or expiration of an Option, and the priceper Share of the Common Stock covered by an Option will each be proportionatelyadjusted for any increase or decrease in the number of outstanding shares ofCommon Stock resulting from stock splits, reverse stock splits, stockdividends, reclassifications and recapitalizations or automatic conversion ofshares of one class of stock to those of another by operation of the terms ofsuch stock.  Such adjustment shall bemade by the Administrator whose determination in that respect will be final,binding and conclusive.  Except asprovided herein, no issuance by the Company of shares of stock of any class orsecurities convertible into shares of stock of any class, will affect,

 

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andno adjustment by reason thereof will be made with respect to, the number orprice of shares of Common Stock subject to an Option.

 

(b)           No FractionalShares.  No fractional Shares shallbe issuable on account of any action aforesaid, and the aggregate number ofShares into which Shares then covered by the Option, when changed as the resultof such action, shall be reduced to the number of whole Shares resulting fromsuch action, unless the Administrator, in its sole discretion, shall determineto issue scrip Certificates in respect to any fractional Shares, which scripCertificates shall be in a form and have such terms and conditions as theAdministrator in its discretion shall prescribe.

 

Section 9.  Rights as aStockholder.

 

An Optionee shall have no rights as a stockholder of the Company andshall not have the right to vote nor receive dividends with respect to anyShares subject to an Option until such Option has been exercised and a stockCertificate with respect to the Shares purchased upon such exercise of theOption has been issued to Optionee as set forth in Section 6(e)(4) and (5)hereof.

 

Section 10.  Forfeiture.

 

Notwithstanding any other provision of this Plan, (a) if an Optionee’semployment with the Company is terminated by the Company pursuant to the causetermination provisions of an applicable employment agreement, or (b) if theOptionee’s employment or consulting relationship with the Company (as the casemay be) is terminated and the Board makes a determination that the Optionee (1)has engaged in any type of disloyalty to the Company, including withoutlimitation, fraud, embezzlement, theft, or dishonesty in the course ofOptionee’s employment or consulting relationship, (2) has been convicted of afelony or other crime involving a breach of trust or fiduciary duty owed to theCompany, (3) has made an unauthorized disclosure of trade secrets orconfidential information of the Company, or (4) has breached anyconfidentiality agreement or non-competition agreement with the Company in anymaterial respect, then, at the election of the Board, all unexercised Optionsheld by the Optionee (whether or not then exercisable) shall terminate.  In the event of such an election by theBoard, in addition to immediate termination of all unexercised Options, theOptionee shall forfeit all Shares for which the Company has not yet deliveredstock Certificates to the Optionee and the Company shall refund to the Optioneethe exercise price paid to it upon exercise of the Option with respect to suchShares.  Notwithstanding anything hereinto the contrary, the Company may withhold delivery of stock Certificatespending the resolution of any inquiry that could lead to a finding resulting inforfeiture.

 

Section 11.  Time of GrantingOptions.

 

The date of grant of an Option shall, for all purposes, be the date onwhich the Administrator makes the determination to grant the Option or suchother date as is determined by the Administrator.  Notice of the determination shall be given to each Optionee to whoman Option is so granted within a reasonable time after the date of such grant.

 

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Section 12.  Modification,Extension, Renewal of Option.

 

Subject to the terms and conditions of the Plan, the Administrator maymodify, extend or renew an Option, or accept the surrender of an Option (to theextent not theretofore exercised); provided that no Incentive Stock Option maybe modified, extended or renewed if such action would cause such Option tocease to be an incentive stock option within the meaning of Section 422 of theCode.

 

Section 13.  Transferability.

 

No Option may be sold, pledged, assigned, transferred or disposed of inany manner other than by will or by the laws of descent and distribution.  During the lifetime of the Optionee, his orher Options shall be exercisable by the Optionee.  In the event of the Optionee’s legal incapacity or Disability,the Option is exercisable by the Optionee’s legal guardian or representative.

 

Section 14.  Power of Boardif Change of Control.

 

Notwithstanding anything to the contrary set forth in this Plan, in theevent of a Change of Control, the Board shall have the right, in its solediscretion, to accelerate the vesting of all Options that have not vested as ofthe date of the Change of Control and/or to establish an earlier date for theexpiration of the exercise of an Option (notwithstanding a later expiration ofexercisability set forth in an Option Agreement).  In addition, in the event of a Change of Control of the Company,the Board shall have the right, in its sole discretion, subject to andconditioned upon a Sale of the Company: (a) to arrange for the successor company (or other entity) to assume allof the rights and obligations of the Company under this Plan; or (b) toterminate this Plan and (i) to pay to all Optionees cash with respect to thoseOptions that are vested as of the date of the Sale of the Company in an amountequal to the difference between the Option Price and the Fair Market Value of aShare of Common Stock (determined as of the date the Plan is terminated)multiplied by the number of Options that are vested as of the date of the Saleof the Company which are held by the Optionee as of the date of the Sale of theCompany, or (ii) to arrange for the exchange of all Options for options topurchase common stock in the successor corporation, or (iii) to distribute toeach Optionee other property in an amount equal to and in the same form as theOptionee would have received from the successor corporation if the Optionee hadowned the Shares subject to Options that are vested as of the date of the Saleof the Company rather than the Option at the time of the Sale of theCompany.  The form of payment ordistribution to the Optionee pursuant to this Section shall be determined bythe Board in its sole discretion.

 

Section 15.  Amendment orTermination of the Plan.

 

Insofar as permitted by law and the Plan, the Board may at any timesuspend, terminate, discontinue, alter or amend the Plan in any respectwhatsoever; provided, however, that without prior approval of at least amajority of the stockholders entitled to vote thereon, no such revision oramendment may increase the aggregate number of Shares for which Options may begranted hereunder, change the designation of the class of Optionees eligible toreceive Options or

 

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decreasethe price at which Options may be granted. Any other provision of this Section notwithstanding, the Boardspecifically is authorized to adopt any amendment to this Plan deemed by theBoard to be necessary or advisable to assure that the Incentive Stock Optionsor the Non-Qualified Stock Options available under the Plan continue to betreated as such, respectively, under all applicable laws.

 

Section 16.  Application ofFunds.

 

The proceeds received by the Company from the sale of Shares pursuantto the exercise of Options shall be used for general corporate purposes.

 

Section 17.  No Obligation toExercise Option.

 

The granting of an Option shall impose no obligation upon the Optioneeto exercise such Option.

 

Section 18.  Approval ofStockholders.

 

This Plan, and any amendments thereto, shall become effective on thedate the Plan or amendment, as applicable, is adopted by the Board; providedthat the Plan shall become limited to a non-qualified stock option plan if,either in the case of the Plan’s original adoption or in the case of anamendment increasing the number of shares reserved for award under the Plan orchanging the class of employees eligible for Incentive Stock Options (“materialamendment”), the Plan or such material amendment is not approved by thestockholders of a majority of the Company’s outstanding voting stock within oneyear (365 days) of its adoption by the Board. The Administrator may grant Options hereunder prior to approval of thePlan, or any material amendments thereto, by the holders of a majority of theCompany’s outstanding voting stock; provided that any and all Options sogranted shall be converted into Non-Qualified Stock Options if the Plan ormaterial amendment, as applicable, is not approved by such stockholders within365 days of its adoption.

 

Section 19.  Conditions UponIssuance of Shares.

 

(a)           Options grantedunder the Plan are conditioned upon the Company obtaining any required permitor order from appropriate governmental agencies, authorizing the Company toissue such Options and Shares issuable upon the exercise thereof.

 

(b)           Shares shall not beissued pursuant to the exercise of an Option unless the exercise of such Optionand the issuance and delivery of such Shares pursuant thereto shall comply withall relevant provisions of law, including, without limitation, the SecuritiesAct, the Exchange Act, the rules and regulations promulgated thereunder, andthe requirements of any stock exchange upon which the Shares may then belisted, and shall be further subject to the approval of counsel for the Companywith respect to such compliance.

 

(c)           As a condition tothe exercise of an Option, the Administrator may require the person exercisingsuch Option to execute an agreement with, and/or may require the person

 

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exercisingsuch Option to make any representation and/or warranty to, the Company as maybe, in the judgment of counsel to the Company, required under applicable law orregulation, including but not limited to, a representation and warranty thatthe Shares are being purchased only for investment and without any presentintention to sell or distribute such Shares if, in the opinion of counsel forthe Company, such a representation and warranty is appropriate under any of theaforementioned relevant provisions of law.

 

Section 20.  Reservation ofShares.

 

(a)           The Company, duringthe term of this Plan, shall at all times reserve and keep available suchnumber of Shares as shall be sufficient to satisfy the requirements of thePlan.

 

(b)           The Company, duringthe term of this Plan, shall use its best efforts to seek to obtain fromappropriate regulatory agencies any requisite authorization in order to issueand sell such number of Shares as shall be sufficient to satisfy therequirements of the Plan.  The inabilityof the Company to obtain from any such regulatory agency having jurisdictionthe requisite authorization(s) deemed by the Company’s counsel to be necessaryfor the lawful issuance and sale of any Shares hereunder, or the inability ofthe Company to confirm to its satisfaction that any issuance and sale of anyShares hereunder will meet applicable legal requirements, shall relieve theCompany of any liability in respect to the failure to issue or sell such Sharesas to which such requisite authority shall not have been obtained.

 

Section 21.  Other Agreements.

 

Options shall be evidenced by an Option Agreement in such form or formsas the Administrator (subject to the terms and conditions of this Plan) mayfrom time to time approve, which Option Agreement shall evidence and reflectthe terms and conditions of an Option as set forth in Section 6 hereof.  The Administrator may, from time to time,require such other agreements in connection with the Option as it, in its solediscretion, deems advisable.  The OptionAgreement and any other agreement required by the Plan or the Option Agreement,as determined by the Administrator, may contain such other provisions as theAdministrator in its discretion deems advisable and that are not inconsistentwith the provisions of this Plan, including, without limitation, restrictionsupon or conditions precedent to the exercise of the Option.

 

Section 22.  Taxes, Fees,Expenses and Withholding.

 

(a)           The Company shallpay all original issue and transfer taxes (but not income taxes, if any) withrespect to the grant of an Option and/or the issue and transfer of Sharespursuant to the exercise thereof, and all other fees and expenses necessarilyincurred by the Company in connection therewith, and will, from time to time,use its best efforts to comply with all laws and regulations that, in theopinion of counsel for the Company, shall be applicable thereto.

 

(b)           The granting ofOptions hereunder and the issuance of Shares pursuant to the exercise thereofis conditioned upon the Company’s reservation of the right to withhold inaccordance with any applicable law, from any compensation or other amountspayable to the

 

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Optionee,any taxes required to be withheld under federal, state or local law as a resultof the grant or exercise of such Option or the sale of the Shares issued uponexercise thereof.  To the extent thatcompensation or other amounts, if any, payable to the Optionee is insufficientto pay any taxes required to be so withheld, the Company may, in its solediscretion, require the Optionee (or such other person entitled herein to exercisethe Option), as a condition to the exercise of an Option, to pay in cash to theCompany an amount sufficient to cover such tax liability or otherwise to makeadequate provision for the Company’s satisfaction of its withholdingobligations under federal, state and local law.

 

Section 23.  Notices.

 

Any notice to be given to the Company pursuant to the provisions ofthis Plan shall be addressed to the Company in care of its Secretary (or suchother person as the Company may designate from time to time) at its principalexecutive office, and any notice to be given to an Optionee shall be deliveredpersonally or addressed to the Optionee at the address given beneath thesignature of the Optionee on his or her Option Agreement, or at such otheraddress as such Optionee or his or her permitted transferee (upon the transferof the Shares) may hereafter designate in writing to the Company.  Any such notice shall be deemed duly givenwhen enclosed in a properly sealed envelope or wrapper addressed as aforesaid,registered or certified, and deposited, postage and registry or certificationfee prepaid, in a post office or branch post office regularly maintained by theUnited States Postal Service.  It shallbe the obligation of each Optionee and each permitted transferee holding Sharespurchased upon exercise of an Option to provide the Secretary of the Company,by letter mailed as provided herein, with written notice of his or her directmailing address.

 

Section 24.  No Enlargementof Employee Rights.

 

This Plan is purely voluntary on the part of the Company, and thecontinuance of the Plan shall not be deemed to constitute a contract betweenthe Company and any Employee or Consultant, or to be consideration for or acondition of the employment or service of any Employee or Consultant as thecase may be.  Nothing contained in thisPlan shall be deemed to give any Employee or Consultant the right to beretained in the employ or service of the Company, or to interfere with the rightof the Company to discharge or retire any Employee or Consultant thereof at anytime.  No Employee or Consultant shallhave any right to or interest in Options authorized hereunder prior to thegrant thereof to such Employee or Consultant, and upon such grant such Employeeshall have only such rights and interests as are expressly provided herein,subject, however, to all applicable provisions of the Company’s Certificate ofIncorporation, as the same may be amended from time to time.

 

Section 25.  Information toOptionees.

 

The Company, upon request, shall provide without charge to eachOptionee copies of such annual and periodic reports as are provided by theCompany to its stockholders generally.

 

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Section 26.  Availability ofPlan.

 

A copy of this Plan shall be delivered to the Secretary of the Companyand shall be shown to any eligible person making reasonable inquiry concerningit.

 

Section 27.  InvalidProvisions.

 

In the event that any provision of this Plan is found to be invalid orotherwise unenforceable under any applicable law, such invalidity orunenforceability shall not be construed as rendering any other provisionscontained herein as invalid or unenforceable, and all such other provisionsshall be given full force and effect to the same extent as though the invalidor unenforceable provision was not contained herein.

 

Section 28.  Applicable Law.

 

This Plan shall be governed by and construed in accordance with thelaws of the State of Delaware.

 

Section 29.  AdministratorAction.

 

Notwithstanding anything to the contrary set forth in this Plan, anyand all actions of the Administrator taken under or in connection with thisPlan and any agreements, instruments, documents, Certificates or other writingsentered into, executed, granted, issued and/or delivered pursuant to the termshereof, shall be subject to and limited by any and all votes, consents,approvals, waivers or other actions of all or certain stockholders of theCompany or other persons required pursuant to (a) the Company’s Certificate ofIncorporation (as the same may be amended and/or restated from time to time),(b) the Company’s Bylaws (as the same may be amended and/or restated from timeto time), and (c) any other agreement, instrument, document or writing now or hereafterexisting, between or among the Company and its stockholders or other persons(as the same may be amended from time to time).

 

Section 30.  Miscellaneous.

 

This Plan is intended to comply with the conditions and requirementsfor employee benefit plans under Rule 16b-3, as promulgated under Section 16 ofthe Exchange Act such that Options granted pursuant to the Plan will beexempted from the provisions of Section 16(b) thereof.  To the extent that any provision of the Planwould cause a conflict with such requirements, such provision shall be deemednull and void to the extent permitted by applicable law.  This section shall not be applicable if noclass of the Company’s equity securities is then registered pursuant to Section12 of the Exchange Act.

 

AMENDMENT NO. 1 TO THE

EXE TECHNOLOGIES, INC.

1997 INCENTIVE ANDNON-QUALIFIED

STOCK OPTION PLAN

 

**Section5(a) of the EXE Technologies, Inc. 1997 Incentive and Non-Qualified StockOption Plan (the “Plan”) is hereby amended to increase the number of shares ofCommon Stock available for issuance thereunder**

** **

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** **

**from 12,000,000 shares to15,000,000 shares and increasing the maximum number of shares of Common Stockwith respect to which options may be granted under the Plan to any employeeduring any calendar year from 1,000,000 shares to 3,000,000 shares.**

 

 

Adopted by theBoard of Directors

on April 24, 2002

Adopted by theStockholders

on May 30, 2002

 

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**EXE TECHNOLOGIES, INC.**

**1997 INCENTIVE AND NON-QUALIFIED**

**STOCK OPTION PLAN**

 

 

**INCENTIVE STOCK OPTION AGREEMENT**

 

EXETECHNOLOGIES, INC. (the “Company”) hereby grants to ____________________ (the“Optionee”) an option (the “Option”) purchase a total of _______________ sharesof Common Stock, $ .01 par value per share, of the Company (“Common Stock”), atthe price and on the terms set forth herein, and in all respects subject to theterms and provisions of the EXE TECHNOLOGIES, INC. 1997 INCENTIVE ANDNON-QUALIFIED STOCK OPTION PLAN (the “Plan”) applicable to incentive stockoptions, which terms and provisions are incorporated herein by reference.  Capitalized terms used but not otherwisedefined herein shall have the meanings given to them in the Plan.

 

1.**             Natureof the Option.**  The Option isintended by the Company and the Optionee to be an incentive stock option withinthe meaning of Section 422 of the Code.

 

2.             **Date of Grant; Term of Option. **The Option is granted this ______day of ______________, ________,and it may not be exercised later than 5:00 p.m. on the ______ day of____________, ______.

 

3.             **Option Exercise Price.**  The Option exercise price is $_______perShare, which price is the Fair Market Value per share of the Common Stock onthe date hereof; or $______ per share if Optionee, at the time of grant, ownsstock possessing more than ten percent (10%) of the current total combinedvoting power of all classes of the Company’s capital stock, which pricerepresents a price per Share equal to no less than one hundred ten percent(110%) of the Fair Market Value of the Common Stock on the date the Option isgranted.

 

4.             **Exercise of Option.**  Except as otherwise provided herein, theOption shall be exercisable during its term only in accordance with the termsand provisions of the Plan and this Option Agreement as follows:

 

(a)           **Vesting.**  Twenty-Five percent of the Option shall vest and becomeexercisable on the first anniversary of the date of grant.  The remaining 75% of the Option shall vestand become exercisable at a rate of 2.083% of the Option on the last day ofeach month after the first anniversary of the date of grant, with the number ofshares vesting each month determined by rounding up to the nearest whole numberof shares.

 

(b)           **Right to Exercise.**  The Vested Amount of each Option may beexercised at such times and subject to such procedures as the Company mayfurther provide.

 

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(c)           **Method of Exercise.**  The Option shall be exercisable by writtennotice that shall state the election to exercise the Option, the number ofShares in respect to which the Option is being exercised and such otherrepresentations and agreements as to the Optionee’s investment intent withrespect to such Shares as may be required by the Company hereunder or pursuantto the provisions of the Plan.  Suchwritten notice shall be signed by the Optionee (or, subject to the approval ofthe Administrator, a registered securities broker authorized by the Optionee toexercise the Option pursuant to an executed power of attorney) and shall bedelivered in person or by certified mail to the Secretary of the Company orsuch other person as may be designated by the Company.  The written notice shall be accompanied bypayment of the purchase price and any agreements required by the Administrator,the terms of the Plan and/or this Option Agreement.  The Option will be deemed to be exercised upon the receipt by theCompany of such written notice, payment of the purchase price, and dulyexecuted copies of any agreements required by the Administrator, the terms ofthe Plan and/or this Option Agreement. The Optionee will have no right to vote or receive dividends and willhave not other rights as a stockholder with respect to such Sharesnotwithstanding the exercise of the Option, until the issuance (as evidenced bythe appropriate entry on the books of the Company or of a duly authorizedtransfer agent of the Company) of the stock Certificate evidencing the Sharesthat are being issued upon exercise of the Option.  The Company will issue (or cause to be issued) such stockCertificates promptly following the exercise of the Option.  The Certificate or Certificates for theShares as to which the Option shall be exercised shall be registered in thename of the Optionee and shall contain any legend as may be required under thePlan and any agreements required by the Administrator and/or applicable law.

 

(d)           **Method of Payment. **The method of payment of the purchaseprice shall be determined by the Administrator and may consist entirely ofcash, check, or any combination of such methods of payment, or such otherconsideration or method of payment as may be authorized by the Administratorand permitted under the Plan.

 

(e)           **Restrictions on Exercise.**  The Option may not be exercised if theissuance of the Shares upon such exercise would constitute a violation of anyapplicable federal or state securities laws or other laws or regulations.  As a condition to the exercise of theOption, the Company may require the Optionee to make any representations andwarranties to the Company as may be required by any applicable law orregulation.

 

5.             **Investment Representations. **Unless the Shares have been registered under theSecurities Act, in connection with the grant of the Option, the Optioneerepresents and warrants as follows:

 

(a)           The Optionee isacquiring the Option, and upon exercise of the Option, the Optionee will beacquiring the Shares for investment for his or her own account, not as anominee or agent, and not with a view to, or for resale in connection with, anydistribution thereof.

 

(b)           The Optionee isaware of the Company’s business affairs and financial condition and hasacquired sufficient information about the Company to reach an informed andknowledgeable decision to acquire the Shares. The Optionee has received all

 

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informationas the Optionee deems necessary and appropriate to enable him or her toevaluate the financial risk inherent in making an investment in the Shares andhas received satisfactory and complete information concerning the business andfinancial condition of the Company in response to all inquiries in respectthereof.

 

6.             **Termination of Employment with the Company.**  Subject to the provisions of Section 8hereof, upon termination of the Optionee’s employment with the Company for anyreason other than death or Disability, the Optionee shall have the right toexercise the Option at any time within the three (3) month period after thedate of such termination to the extent that the Optionee was entitled toexercise the Option at the date of such termination.

 

7.             **Death or Disability of Optionee.**  Upon the death or Disability of the Optioneewhile in the employ of the Company, the Option may be exercised at any timewithin twelve (12) months after the date of death or termination due toDisability, in the case of death, by the Optionee’s estate or by a person whoacquired the right to exercise the Option by bequest or inheritance, or, in thecase of Disability, by the Optionee or his legal guardian or representative,but in any case only to the extent the Optionee was entitled to exercise theOption at such date; provided, however, that if such disabled Optionee shallcommence any employment or engagement during such twelve (12) month period withor by a competitor of the Company (including, but not limited to, full orpart-time employment or independent consulting work), as determined solely inthe judgment of the Administrator, then the Option shall terminate immediatelyupon the commencement thereof.  To theextent that the Optionee was not entitled to exercise the Option at the date oftermination, or to the extent the Option is not exercised within the timespecified herein, the Option shall terminate. Notwithstanding the foregoing, the Option shall not be exercisable afterthe expiration of the term set forth in Section 2 hereof.

 

8.             **Forfeiture of Option. **Notwithstanding any other provision of the Option Agreement,(a) if the Optionee’s employment with the Company is terminated by the Companypursuant to the cause termination provisions of an applicable employmentagreement, or (b) if the Optionee’s employment with the Company is terminatedand the Board makes a determination that the Optionee (i) has engaged in anytype of disloyalty to the Company, including without limitation, fraud,embezzlement, theft, or dishonesty in the course of his employment, (ii) hasbeen convicted of a felony or other crime involving a breach of trust or otherfiduciary duty owed to the Company, (iii) has disclosed trade secrets orconfidential information of the Company, or (iv) has breached any agreementwith the Company in respect of confidentiality, non-disclosure, non-competitionor otherwise, then, at the election of the Board, all unexercised Options shallterminate.  In the event of such anelection by the Board, in addition to immediate termination of all unexercisedOptions, the Optionee shall forfeit all Shares for which the Company has notyet delivered share Certificates to the Optionee and the Company shall refundto the Optionee the Option price paid to the Company with respect to thoseShares.  Notwithstanding anything hereinto the contrary, the Company may withhold delivery of share Certificatespending the resolution of any inquiry that could lead to a determinationresulting in forfeiture.

 

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9.             **Non-transferability of Option.**  The Option may not be sold, pledged,assigned, hypothecated, gifted, transferred or disposed of in any manner eithervoluntarily or involuntarily by operation of law, other than by will or by thelaws of descent or distribution, and may be exercised during the lifetime ofthe Optionee only by such Optionee. Subject to the foregoing and the terms of the Plan, the terms of the OptionAgreement shall be binding upon the executors, administrators, heirs,successors and assigns of the Optionee.

 

10.           **Continuation of Employment. **Neither the Plan nor this Option Agreement shallconfer upon any Optionee any right to continue in the employment of the Companyor limit in any respect the right of the Company to discharge or release theOptionee at any time, with or without cause and with or without notice.  For purposes of Sections 6, 7 and 8, “Company,”when used with reference to the employment of the Optionee, shall mean theCompany and any Affiliate, as applicable.

 

11.           **Withholding.**  The Company reserves the right to withhold, in accordance withany applicable laws, from any consideration payable to Optionee any taxesrequired to be withheld by federal, state or local law as a result of the grantor exercise of the Option or the sale or other disposition of the Shares issuedupon exercise of the Option.  If theamount of any consideration payable to the Optionee is insufficient to pay suchtaxes or if no consideration is payable to the Optionee, then upon the requestof the Company, the Optionee (or such other person entitled to exercise theOption pursuant to Section 7 hereof) shall pay to the Company an amountsufficient for the Company to satisfy any federal, state or local taxwithholding requirements the Company may incur as a result of the grant orexercise of the Option or the sale or other disposition of the Shares issuedupon the exercise of the Option.

 

12.           **The Plan.** The Option is subject to, and the Company and the Optionee agree to bebound by, all of the terms and conditions of the Plan as such Plan may beamended from time to time in accordance with the terms thereof.  Pursuant to the Plan, the Administrator isauthorized to adopt rules and regulations not inconsistent with the Plan as itshall deem appropriate and proper.  Acopy of the Plan in its present form is available for inspection duringbusiness hours by the Optionee or the persons entitled to exercise the Optionat the Company’s principal office.

 

13.           **Conversion to Non-Qualified Option.**  Notwithstanding anything to the contrary setforth herein, this Option is being granted subject to the condition that in theevent the Plan, or any material amendment (as defined in Section 18 of thePlan) is not approved by the stockholders of the Company within 365 days of thedate that the Plan or material amendment, as applicable, was adopted by theBoard, this Option shall automatically be converted into a Non-Qualified Stock Option.  In addition, neither the Company nor anymember of the Board or Committee shall be liable for any good faithdetermination, act or failure to act in connection with the Option whichthereafter is determined to have converted the Option into a Non-QualifiedStock Option.

 

14.           **Early Disposition of Stock.**  Subject to the fulfillment by the Optioneeof any conditions upon the disposition of Shares received under the Option, theOptionee hereby agrees that if he or she disposes of any Shares received underthe Option within two (2) years

 

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fromdate of grant or one (1) year after such Shares were transferred to him or herupon exercise of the Option, he or she will notify the Company in writingwithin thirty (30) days after the date of such disposition.  The Optionee acknowledges that dispositionby him or her within two (2) years from the date of grant and one (1) year fromthe date of exercise of the Option would disqualify him or her from capitalgain treatment for any gain realized upon such disposition.

 

15.           **Entire Agreement.**  The Option, together with the Plan and the other exhibitsattached thereto or hereto, represents the entire agreement between theparties.

 

16.           **Governing Law.**  This Option shall be construed in accordance with the laws of theState of Delaware, without regard to the application of the principles ofconflicts of laws.

 

17.           **Amendment.** Subject to the provisions of the Plan, this Option Agreement may only beamended by a writing signed by each of the parties hereto.

 
| Date:  |   |   | **EXE TECHNOLOGIES, INC.** |
|--------|--------|--------|----------------------------|
|   |   |
|   |   |
|   | By:    |   |                       |
|   |   |
|   | Title: |   |                       |
|        |        |        |                            |  |  |  |

 

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**ACKNOWLEDGMENT**

 

The Optionee acknowledges receipt of a copy of the Plan, a copy ofwhich is attached hereto, and represents that he or she has read and isfamiliar with the terms and provisions thereof, and hereby accepts the Optionsubject to all of the terms and provisions thereof.  The Optionee hereby agrees to accept as binding, conclusive andfinal all decisions or interpretations of the Administrator upon any questionsarising under the Plan.

 

 
| Date:  |                   |   |   |   |
|--------|------------------------|--------|--------|--------|
|   | Signature  of Optionee |   |
|   |                   |   |
|   |                   |   |
|   | Name                   |   |
|   |                   |   |
|   |                   |   |
|   | Address                |   |
|   |                   |   |
|   |                   |   |
|   | City,  State, Zip      |   |
|   |                   |

 

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**EXE TECHNOLOGIES, INC.**

**1997 INCENTIVE AND NON-QUALIFIED**

**STOCK OPTION PLAN**

 

 

**NON-QUALIFIED STOCK OPTION AGREEMENT**

 

 

EXE TECHNOLOGIES, INC. (the “Company”) hereby grants to_________________________  (the“Optionee”) an option (the “Option”) to purchase a total of __________________shares of Common Stock, $ .01 par value per share, of the Company (“CommonStock”), at the price and on the terms set forth herein, and in all respectssubject to the terms and provisions of the EXE TECHNOLOGIES, INC. 1997INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN (the “Plan”) applicable tonon-qualified stock options, which terms and provisions are incorporated byreference herein.  Unless otherwisedefined herein, capitalized terms used but not defined herein shall have themeanings given to them in the Plan.

 

1.             **Nature of the Option.** The Option is intended to be a nonstatutorystock option and is **NOT**intended to be an incentive stock option within the meaning of Section 422 ofthe Code, or to otherwise qualify for any special tax benefits to the Optionee.

 

2.**             Dateof Grant; Term of Option. **TheOption is granted this ______ day of ___________, ______, and it may not beexercised later than 5:00 p.m. on the ______ day of __________________ , ______.

 

3.             **Option Exercise Price.**  The Option exercise price is _______________($_________) per Share.

 

4.             **Exercise of Option.**  Except as otherwise provided herein, theOption shall be exercisable during its term only in accordance with the termsand provisions of the Plan and this Option Agreement as follows:

 

**(a)**           **Vesting.**  Twenty-Five percent of the Option shall vest and becomeexercisable on the first anniversary of the date of grant.  The remaining 75% of the Option shall vestand become exercisable at a rate of 2.083% of the Option on the last day of eachmonth after the first anniversary of the date of grant, with the number ofshares vesting each month determined by rounding up to the nearest whole numberof shares.

 

**(b)**           **Right to Exercise. **The Vested Amount of each Option may beexercised at such times and subject to such procedures as the Company mayfurther provide.

 

**(c)           Methodof Exercise.**  The Option shall be exercisable by writtennotice that shall state the election to exercise the Option, the number ofShares in respect to which the Option is being exercised and such otherrepresentations and agreements as to the Optionee’s investment intent withrespect to such Shares as may be required by the

 

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Administratoror pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee (or, subject to theapproval of the Administrator, a registered securities broker authorized by theOptionee to exercise the Option pursuant to an executed power of attorney) andshall be delivered in person or by certified mail to the Secretary of theCompany or such other person as may be designated by the Company.  The written notice shall be accompanied bypayment of the purchase price and any agreements required by the Administrator,the terms of the Plan and/or this Option Agreement.  The Option will be deemed to be exercised upon the receipt by theCompany of such written notice, payment of the purchase price and duly executedcopies of any agreements required by the Administrator, the terms of the Planand/or this Option Agreement.  The Optioneeshall have no right to vote or receive dividends and shall have no other rightsas a stockholder with respect to such Shares, notwithstanding the exercise ofthe Option, until the issuance by the Company (as evidenced by the appropriateentry on the books of the Company or of a duly authorized transfer agent of theCompany) of the stock Certificate evidencing the Shares that are being issuedupon exercise of the Option.  TheCompany will issue (or cause to be issued) such stock Certificates promptlyfollowing the exercise of the Option.  TheCertificate or Certificates for the Shares as to which the Option shall beexercised shall be registered in the name of the Optionee and shall contain anylegend as may be required under the Plan and any agreements required by theAdministrator and/or applicable law.

 

**(d)           Methodof Payment. **The method of payment of the purchase priceshall be determined by the Administrator and may consist entirely of cash,check, or any combination of such methods of payment, or such otherconsideration or method of payment as may be authorized by the Administratorand permitted under the Plan.

 

**(e)           Restrictionson Exercise.**  The Option may not be exercised if theissuance of the Shares upon such exercise would constitute a violation of anyapplicable federal or state securities laws or other laws or regulations.  As a condition to the exercise of theOption, the Company may require the Optionee to make any representations andwarranties to the Company as may be required by any applicable law orregulation.

 

5.**             InvestmentRepresentations.**  Unless theShares have been registered under the Securities Act, in connection with theacquisition of the Option, the Optionee represents and warrants as follows:

 

**(a)**           The Optionee isacquiring the Option, and upon exercise of the Option, Optionee will beacquiring the Shares for investment for his or her own account, not as anominee or agent, and not with a view to, or for resale in connection with, anydistribution thereof.

 

**(b)**           The Optionee is awareof the Company’s business affairs and financial condition and has acquiredsufficient information about the Company to reach an informed and knowledgeabledecision to acquire the Shares.  TheOptionee has received all such information as the Optionee deems necessary andappropriate to enable him or her to evaluate the financial risk inherent inmaking an investment in the Shares and has received satisfactory and completeinformation concerning the business and financial condition of the Company inresponse to all inquiries in respect thereof.

 

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**6.             Terminationof Relationship with the Company.**  Subject to the provisions ofSection 8 hereof, upon termination of the Optionee’s employment, consulting orother relationship with the Company (as the case may be) for any reason otherthan death or Disability, the Optionee shall have the right to exercise thisOption up to the Vested Amount as of the date of termination for a period ofthree (3) months from the date of such termination, provided that the Optioneemay only exercise the Option to the extent that the Optionee was entitled toexercise the Option at the date of such termination.

 

**7.             Deathor Disability of Optionee**.  Upon the death or Disabilityof the Optionee while in the employ of or engagement by the Company (as thecase may be), the Option may be exercised up to the Vested Amount at any timewithin twelve (12) months after the date of death or termination due toDisability provided the Optionee was entitled to exercise the Option at thedate of his or her death or termination due to Disability.  In the case of death, the Option may beexercised by the Optionee’s estate or by a person who acquired the right toexercise this Option by bequest or inheritance.  In the case of Disability, the Option may be exercised by theOptionee or his or her legal guardian or representative, but in any case, theOption may be exercised only to the extent that the Optionee was entitled toexercise the Option at such date; provided, however, that if such disabledOptionee shall commence any employment or engagement during such twelve (12)month period with or by a competitor of the Company (including, but not limitedto, full or part-time employment or independent consulting work), as determinedsolely in the judgment of the Administrator, then the Option shall terminateimmediately upon the commencement thereof. To the extent that the Optionee was not entitled to exercise the Optionat the date of termination, or to the extent the Option is not exercised withinthe time specified herein, the Option shall terminate.  Notwithstanding the foregoing, the Optionshall not be exercisable after the expiration of the term set forth in Section2 hereof.

 

**8.             Forfeitureof Option.**  Notwithstanding any other provision of thisOption Agreement, (a) if an Optionee’s employment with the Company isterminated by the Company pursuant to the cause termination provisions of anapplicable employment agreement, or (b) if the Optionee’s employment orconsulting relationship with the Company (as the case may be) is terminated andthe Board makes a determination that the Optionee (i) has engaged in any typeof disloyalty to the Company, including without limitation, fraud,embezzlement, theft, or dishonesty in the course of his employment orengagement, (ii) has been convicted of a felony or other crime involving abreach of trust or other fiduciary duty owed to the Company, (iii) hasdisclosed trade secrets or confidential information of the Company, or (iv) hasbreached any agreement with the Company in respect of confidentiality,non-disclosure, non-competition or otherwise, then, at the election of theBoard, all unexercised Options shall terminate.  In the event of such an election by the Board, in addition toimmediate termination of all unexercised Options, the Optionee shall forfeitall Shares for which the Company has not yet delivered share Certificates tothe Optionee and the Company shall refund to the Optionee the Option price paidto the Company with respect to those Shares. Notwithstanding anything herein to the contrary, the Company maywithhold delivery of share Certificates pending the resolution of any inquirythat could lead to a determination resulting in forfeiture.

 

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**9.             Non-transferabilityof Option.**  The Option may not be sold, pledged,assigned, hypothecated, gifted, transferred or disposed of in any manner eithervoluntarily or involuntarily by operation of law, other than by will or by thelaws of descent or distribution, and may be exercised during the lifetime ofthe Optionee only by such Optionee. Subject to the foregoing and the terms of the Plan, the terms of thisOption Agreement shall be binding upon the executors, administrators, heirs,successors and assigns of the Optionee.

 

**10.          Continuationof Employment or Engagement.**  Neither the Plan nor thisOption Agreement shall confer upon any Optionee any right to continue in theservice of the Company or limit, in any respect, the right of the Company to dischargeor release the Optionee at any time, with or without cause and with or withoutnotice.  For purposes of Sections 6, 7,8 and 10 “Company,” when used with reference to the employment or other serviceof the Optionee, shall mean the Company and any Affiliate, as applicable.

 

**11.          Withholding.**  TheCompany reserves the right to withhold, in accordance with any applicable laws,from any consideration payable to the Optionee any taxes required to bewithheld by federal, state or local law as a result of the grant or exercise ofthe Option or the sale or other disposition of the Shares issued upon exerciseof the Option.  In addition, in the caseof an Option granted to an Optionee who is not subject to the tax laws of theUnited States, the Optionee shall also be liable, to the extent permitted byapplicable foreign law, for any taxes imposed under foreign law on the Companyor Affiliate of the Company as a result of the grant or exercise of the Optionor the sale or other disposition of the Shares issued upon exercise of theOption.  If the amount of anyconsideration payable to the Optionee is insufficient to pay such taxes or ifno consideration is payable to the Optionee, then upon the request of theCompany, the Optionee (or such other person entitled to exercise the Optionpursuant to Section 7 hereof) shall pay to the Company (a) an amount sufficientfor the Company to satisfy any federal, state or local tax withholdingrequirements the Company may incur, or (b) an amount equal to any foreign taxesincurred by the Company or Affiliate of the Company, as a result of the grantor exercise of the Option or the sale or other disposition of the Shares issuedupon the exercise of the Option.

 

**12.          ThePlan.**  This Option Agreement is subject to, and theCompany and the Optionee agree to be bound by, all of the terms and conditionsof the Plan as such Plan may be amended from time to time in accordance withthe terms thereof.  Pursuant to thePlan, the Administrator is authorized to adopt rules and regulations notinconsistent with the Plan as it shall deem appropriate and proper.  A copy of the Plan in its present form isavailable for inspection during business hours by the Optionee or the personsentitled to exercise the Option at the Company’s principal office.

 

**13.          EntireAgreement.**  This Option Agreement, together with thePlan, and any other and the other exhibits attached thereto or hereto,represents the entire agreement between the parties.

 

**14.          GoverningLaw.**  This Option Agreement shall be construed inaccordance with the laws of the State of Delaware, without regard to theapplication of the principles of conflicts of laws.

 

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**15.          Amendment.** Subject to the provisions of the Plan, this Option Agreement may only beamended by a writing signed by each of the parties hereto.

 

 
| Date:  |   |   | **EXE TECHNOLOGIES, INC.** |
|--------|--------|--------|----------------------------|
|   |   |
|   |   |
|   | By:    |   |                       |   |
|   |   |   |                       |
|   | Title: |   |                       |
|        |        |        |                            |  |  |  |  |

 

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**ACKNOWLEDGMENT**

 

The Optionee acknowledges receipt of a copy of the Plan, a copy ofwhich is attached hereto, and represents that he or she has read and isfamiliar with the terms and provisions thereof, and hereby accepts the Optionsubject to all of the terms and provisions thereof.  The Optionee hereby agrees to accept as binding, conclusive andfinal all decisions or interpretations of the Administrator upon any questionsarising under the Plan.

 
| Date:  |                   |   |   |   |
|--------|------------------------|--------|--------|--------|
|   | Signature  of Optionee |   |
|   |                   |   |
|   |                   |   |
|   | Name                   |   |
|   |                   |   |
|   |                   |   |
|   | Address                |   |
|   |                   |   |
|   |                   |   |
|   | City,  State, Zip      |   |

 

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