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EXHIBIT 10.23
1996 STOCK OPTION PLAN - [PLEASE DELETE BEFORE PRINTING]
JDA SOFTWARE GROUP, INC.
AMENDMENT OF
STOCK OPTION AGREEMENT
THIS AMENDMENT OF STOCK OPTION AGREEMENT is made by and between JDA
Software Group, Inc., a Delaware corporation (the "Company"), and
_______________ (the "Optionee").
RECITALS
WHEREAS, on _________________, the Company granted to the Optionee an
option to purchase __________ shares of the Company's common stock at an
exercise price of $_______ per share (the "Option"), which was evidenced by a
Stock Option Agreement (the "Option Agreement"); and
WHEREAS, the Company and the Optionee wish to amend the Option to
provide for acceleration of vesting of any unvested shares subject to the Option
upon the occurrence of certain events related to an acquisition of the Company,
pursuant to the terms and conditions set forth below;
AGREEMENT
NOW, THEREFORE, the Company and the Optionee agree as follows:
1. Effective Date. This Amendment is effective as of ____________,
1999.
2. Termination After Transfer of Control.
(a) Acceleration of Vesting. Notwithstanding any provisions of
the Option Agreement to the contrary, in the event of a Termination After
Transfer of Control (as defined below), any unexercised portion of the Option
shall be immediately exercisable and vested in full as of the date of the
Optionee's termination of employment with the Company. Any exercise or vesting
of the Option that was permissible solely by reason of this Amendment shall be
subject to the provisions of Section 3 and 4 below.
(b) Post-Termination Exercise. In the event of a Termination
After Transfer of Control, the Option, to the extent unexercised by the Optionee
on the date on which the Optionee's employment terminated, may be exercised by
the Optionee within three (3) months (or six (6) months if the Optionee is
subject to restrictions on transfer to comply with "Pooling-of-Interests"
accounting rules) after the date on which the Optionee's employment terminated,
but in any event no later than the expiration date set forth in the Option
Agreement.
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3. Pooling of Interests Accounting. Notwithstanding anything herein to
the contrary, no acceleration of exercisability or vesting of the Option shall
occur pursuant to this Amendment in the event that (a) the Securities and
Exchange Commission (the "SEC") asserts that such acceleration of exercisability
or vesting precludes the use of "pooling of interests" accounting treatment of
the Transfer of Control, (b) the Transfer of Control is supported by the Board
of Directors of the Company, and (c) the SEC will not reverse its position
following reasonable persuasive efforts by the Company.
4. Section 4999 Limitation. This Section shall apply only if the
Optionee, on an after-tax basis, would receive more value under the Option after
the application of this Section than before the application of this Section. For
this purpose, "after-tax basis" shall mean a calculation taking into account all
federal and state income and excise taxes imposed on the Optionee, including
(without limitation) the excise tax described in Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"). If this Section is applicable, it
shall supersede any conflicting provision of this Amendment or the Option
Agreement.
The vesting of shares subject to the Option shall accelerate pursuant
to the provisions of this Amendment, but only to the extent that such
acceleration would not subject the Optionee to the excise tax described in
Section 4999 of the Code. All calculations required by this Section shall be
made by the independent auditors retained by the Company most recently prior to
the Transfer of Control, based on information supplied by Company and Optionee,
and shall be binding on the Company and the Optionee. All fees and expenses of
such auditors shall be paid by the Company.
5. Definitions. For purposes of this Amendment, the following terms
shall have the meanings set forth below:
(a) "CAUSE" shall occur if the Optionee's employment is
terminated for any of the following reasons:
(i) Theft, dishonesty, or intentional falsification
of any employment or Company records;
(ii) Improper disclosure of the Company's
confidential or proprietary information; or
(iii) The Optionee's conviction (including any plea
of guilty or no contest) for any criminal act that impairs his ability to
perform his duties for the Company.
(b) "GOOD REASON" shall mean the occurrence of any of the
following conditions, without the Optionee's written consent, which condition(s)
remain(s) in effect twenty (20) days after written notice to the Company from
Optionee of such condition(s):
(i) a failure to pay, or any reduction of the
Optionee's base salary as in effect immediately prior to the Transfer of Control
or the Optionee's bonus compensation in
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effect prior to the Transfer of Control (subject to applicable performance
requirements with respect to the actual amount of bonus compensation earned by
the Optionee); or
(ii) any material breach of this Amendment by the
Company.
(c) An "OWNERSHIP CHANGE EVENT" shall be deemed to have
occurred if any of the following occurs with respect to the Company:
(i) the direct or indirect sale or exchange in a
single or series of related transactions by the stockholders of the Company of
more than fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company
is a party;
(iii) the sale, exchange, or transfer of all or
substantially all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
(d) "TERMINATION AFTER TRANSFER OF CONTROL" shall mean the
occurrence, within eighteen (18) months following a Transfer of Control, of
either (i) termination of the Optionee's employment by the Company for any
reason other than for Cause, or (ii) the Optionee's resignation for Good Reason.
"Termination After Transfer of Control" shall not include any termination of the
employment of the Optionee (i) by the Company for Cause; (ii) by the Company as
a result of the disability of the Optionee; (iii) as a result of the death of
the Optionee; or (iv) as a result of the voluntary termination of employment by
the Optionee (other than for Good Reason).
(e) "TRANSFER OF CONTROL" shall mean an Ownership Change Event
or a series of related Ownership Change Events (collectively, the "TRANSACTION")
wherein the stockholders of the Company immediately before the Transaction do
not retain immediately after the Transaction, in substantially the same
proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting stock of the Company or the corporation or corporations to
which the assets of the Company were transferred (the "TRANSFEREE
CORPORATION(S)"), as the case may be.
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6. Successors.
(a) Company's Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) or to all or substantially all of the
Company's business and/or assets shall assume the obligations under this
Amendment and agree expressly to perform the obligations under this Amendment in
the same manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. Failure of the Company
to obtain such agreement shall be a material breach of this Amendment. For all
purposes under this Amendment, the term "Company" shall include any successor to
the Company's business and/or assets which executes and delivers the assumption
agreement described in this subsection (a) or which becomes bound by the terms
of this Amendment by operation of law.
(b) Optionee's Successors. All rights of the Optionee
hereunder shall inure to the benefit of, and be enforceable by, the Optionee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Optionee shall have no right to assign any
of his obligations or duties under this Amendment to any other person or entity.
7. Continuation of Other Terms. Except as set forth herein, all other
terms and conditions of the Option Agreement shall remain in full force and
effect.
8. Applicable Law. This Amendment shall be governed by the laws of the
State of Delaware as such laws are applied to agreements between Delaware
residents entered into and to be performed entirely within the State of
Delaware.
OPTIONEE JDA SOFTWARE GROUP, INC.
_______________________________ By:_________________________________
Title:______________________________
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