As filed with the Securities and Exchange Commission on February 9, 2001
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EXE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 75-1719817
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
8787 STEMMONS FREEWAY, DALLAS, TEXAS 75247
(Address of Principal Executive Offices) (Zip Code)
1997 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
(Full Title of the Plan)
RAYMOND R. HOOD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EXE TECHNOLOGIES, INC.
8787 STEMMONS FREEWAY
DALLAS, TEXAS 75247
(Name and Address of Agent for Service)
(214) 775-6000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM
SECURITIES OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE AMOUNT PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED TO BE REGISTERED PER SHARE PRICE FEE
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Common Stock, 7,686,387 shares $7.6449(1) $58,761,659.98 $14,690.42
$.01 par value
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Common Stock, 3,913,613 shares $9.8125(2) $38,402,327.57 $ 9,600.59
$.01 par value
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TOTAL 11,600,000 shares $97,163,987.55 $24,292.00
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(1) 7,686,387 shares issuable under the 1997 Incentive and Non-Qualified
Stock Option Plan are issuble upon the exercise of currently
outstanding options with fixed exercise prices. Pursuant to Rule
457(h)(1) of the Securities Act of 1933, as amended, the aggregate
offering price and fee for these shares has been computed based on the
weighted average price per share at which the outstanding options under
this plan may be exercised.
(2) Calculated in accordance with Rules 457 (c) and (h) under the
Securities Act of 1933, as amended, based upon the average of the
high and low prices reported on NASDAQ for February 8, 2001.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the Registrant's 1997 Incentive and Non-Qualified Stock
Option Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act").
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are on file with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been
filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the common stock of the Registrant, $0.01 par
value per share (the "Common Stock"), contained in a registration
statement filed under the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits
a Delaware business corporation to indemnify its directors, officers, employees
and agents against liability for each such person's acts taken in his or her
capacity as a director, officer, employee or agent of the corporation if such
actions were taken in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action, if he or she had no reasonable cause to
believe his or her conduct was unlawful. Section Nine of the Registrant's second
amended and restated certificate of incorporation (the "Certificate of
Incorporation") and Article Eight of the Registrant's amended and restated
by-laws (the "By-laws") provide that the Registrant, to the full extent
permitted by Section 145 of the DGCL, shall indemnify all of its past and
present directors or officers and may indemnify all of its past or present
employees or other agents. To the extent that the Registrant's director,
officer, employee or agent has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in the Certificate of
Incorporation and By-laws, or in defense of any claim, issue or matter therein,
the Registrant shall indemnify him or her against actually and reasonably
incurred expenses in connection therewith. Such expenses may be paid in advance
of the final disposition of the action upon receipt of an undertaking to repay
the advance if it is ultimately determined that such person is not entitled to
indemnification.
As permitted by Section 102(b)(7) of the DGCL, Section Eight of the
Certificate of Incorporation provides that none of the Registrant's directors
shall be liable to the Registrant for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for the unlawful payment of dividends on or redemption
of the Registrant's capital stock or (iv) for any transaction from which the
director derived an improper personal benefit.
The Registrant has obtained a policy insuring it and its directors and
officers against certain liabilities, including liabilities under the Securities
Act, and has entered or will enter into indemnification agreements with the
Registrant's directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
1. The Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Dallas, Texas on February 9, 2001.
EXE TECHNOLOGIES, INC.
By: /s/ Raymond R. Hood
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Raymond R. Hood
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of EXE Technologies, Inc.
hereby severally constitute and appoint Raymond R. Hood and Michael A.
Burstein, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration
Statement, and generally to do all such things in our names and on our behalf
in our capacities as officers and directors to enable EXE Technologies, Inc.
to comply with all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/s/ Raymond R. Hood President and Chief Executive Officer, February 9, 2001
----------------------------- and Director (Principal Executive
Raymond R. Hood Officer and Director)
/s/ Michael A. Burstein Senior Vice President, Finance, Chief February 9, 2001
----------------------------- Financial Officer and Treasurer
Michael A. Burstein (Principal Financial Officer and
Principal Accounting Officer)
/s/ Lyle A. Baack Chairman of the Board of Directors February 9, 2001
-----------------------------
Lyle A. Baack
/s/ Adam C. Belsky Director February 9, 2001
-----------------------------
Adam C. Belsky
/s/ Klaus P. Besier Director February 9, 2001
-----------------------------
Klaus P. Besier
/s/ Gregory A. Brady Director February 9, 2001
-----------------------------
Gregory A. Brady
/s/ J. Michael Cline Director February 9, 2001
-----------------------------
J. Michael Cline
/s/ Steven A. Denning Director February 9, 2001
-----------------------------
Steven A. Denning
/s/ Michael J. Durham Director February 9, 2001
-----------------------------
Michael J. Durham
/s/ Jay C. Hoag Director February 9, 2001
-----------------------------
Jay C. Hoag
/s/ Jeffrey R. Rodek Director February 9, 2001
-----------------------------
Jeffrey R. Rodek
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Second Amended and Restated Certificate of Incorporation of the
Registrant (Incorporated herein by reference to Exhibit 3.1b to the
Registrant's Quarterly Report on Form 10-Q for the period ended June
30, 2000).
4.2 Amended and Restated By-Laws of the Registrant (Incorporated herein by
reference to Exhibit 3.2b to the Registrant's Quarterly Report on Form
10-Q for the period ended June 30, 2000).
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in page II-5).