EXHIBIT 10.16
JDA SOFTWARE GROUP, INC.
NON-PLAN STOCK OPTION AGREEMENT
JDA Software Group, Inc. has granted to Xxxxxxx X. Xxxxxx (the
"OPTIONEE") an option (the "Option") to purchase certain shares of Stock upon
the terms and conditions set forth in this Stock Option Agreement (the "OPTION
AGREEMENT").
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. Unless otherwise defined herein, capitalized
terms shall have the meanings set forth below:
(a) "DATE OF OPTION GRANT" means March 4, 1999.
(b) "NUMBER OF OPTION SHARES" means 18,750 shares of
Stock, as adjusted from time to time pursuant to Section 9.
(c) "EXERCISE PRICE" means $ 6.4375 per share of
Stock, as adjusted from time to time pursuant to Section 9.
(d) "INITIAL VESTING DATE" means March 4, 2000.
(e) "VESTED SHARES" means, on any relevant date,
except as otherwise provided herein, that portion (rounded down to the nearest
whole share) of the Number of Option Shares determined by multiplying the Number
of Option Shares by the "VESTED RATIO" determined as of such date as follows:
Vested Ratio
Prior to Initial Vesting Date 0
On Initial Vesting Date, provided the
Optionee's Service is continuous from the
Date of Option Grant until the Initial
Vesting Date 1/3
Plus:
For each full month of the Optionee's
continuous Service from the Date of
Option Grant until the Vested Ratio equals
1/1, an additional 1/36
(f) "OPTION EXPIRATION DATE" means the date ten (10)
years after the Date of Option Grant.
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(g) "BOARD" means the Board of Directors of the
Company. If one or more committees of the Board have been appointed by the Board
to administer the Option Agreement, "Board" shall also mean such Committee(s).
(h) "CODE" means the Internal Revenue Code of 1986,
as amended, and any applicable regulations promulgated thereunder.
(i) "COMPANY" means XXX Software Group, Inc., a
Delaware corporation, or any successor corporation thereto.
(j) "COMMITTEE" means a committee of the Board duly
appointed to administer the Plan and having such powers as shall be specified by
the Board. Unless the powers of the Committee have been specifically limited,
the Committee shall have all of the powers of the Board granted herein,
including, without limitation, the power to amend or terminate the Plan at any
time, subject to the terms of the Plan and any applicable limitations imposed by
law.
(k) "CONSULTANT" means any person, including an
advisor, engaged by a Participating Company to render services other than as an
Employee or a Director.
(1) "DIRECTOR" means a member of the Board or the
board of directors of any other Participating Company.
(m) "DISABILITY" means the permanent and total
disability of the Optionee within the meaning of Section 22 (e)(3) of the Code.
(n) "EMPLOYEE" means any person treated as an
employee (including an officer or a Director who is also treated as an employee)
in the records of a Participating Company; provided, however, that neither
service as a Director nor payment of a director's fee shall be sufficient to
constitute employment for purposes of the Plan.
(o) "EXCHANGE ACT" means the Securities Exchange Act
of 1934, as amended.
(p) "FAIR MARKET VALUE " means, as of any date, the
value of a share of stock or other property as determined by the Board, in its
sole discretion, or by the Company, in its sole discretion, if such
determination is expressly allocated to the Company herein, subject to the
following:
(i) If, on such date, the Stock is listed on
a national or regional securities exchange or market system, the Fair Market
Value of a share of Stock shall be the closing sale price of a share of Stock
(or the mean of the closing bid and asked prices of a share of Stock if the
Stock is so quoted instead) as quoted on the Nasdaq National Market, The Nasdaq
SmallCap Market or such other national or regional securities exchange or market
system constituting the primary market for the Stock, as reported in The Wall
Street Journal or such other source as the Company deems reliable. If the
relevant date does not fall on a day on which the Stock has traded on such
securities exchange or market system, the date on which the Fair Market Value
shall be established shall be the last day on which the Stock was so traded
prior to
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the relevant date, or such other appropriate day as shall be determined by the
Board, in its discretion.
(ii) If, on such date, the Stock is not
listed on a national or regional securities exchange or market system, the Fair
Market Value of a share of Stock shall be as determined by the Board without
regard to any restriction other than a restriction which, by its terms, will
never lapse.
(q) "OFFICER" means any person designated by the
Board as an officer of the Company.
(r) "OUTSIDE DIRECTOR" means a Director of the
Company who is not an Employee.
(s) "PARENT CORPORATION" means any present or future
"parent corporation" of the Company, as defined in Section 424(e) of the Code.
(t) "PARTICIPATING COMPANY" means the Company or any
Parent Corporation or Subsidiary Corporation.
(u) "PARTICIPATING COMPANY GROUP" means, at any point
in time, all corporations collectively which are then Participating Companies.
(v) "RULE 16b-3" means Rule 16b-3 as promulgated
under the Exchange Act as amended from time to time, or any success or rule or
regulation.
(w) "SECURITIES ACT" means the Securities Act of
1933, as amended.
(x) "SERVICE" means the Optionee's service with the
Participating Company Group, whether in the capacity of an Employee, a Director
or a Consultant. The Optionee's Service shall not be deemed to have terminated
merely because of a change in the capacity in which the Optionee renders Service
to the Participating Company Group or a change in the Participating Company for
which the Optionee renders such Service, provided that there is no interruption
or termination of the Optionee's Service. The Optionee's Service shall be deemed
to have terminated either upon an actual termination of Service or upon the
corporation for which the Optionee performs Service ceasing to be a
Participating Company.
(y) "STOCK" means the common stock par value $0.01 of
the Company, as adjusted from time to time in accordance with Section 9.
(z) "SUBSIDIARY CORPORATION" means any present or
future "subsidiary corporation" of the Company, as defined in Section 424(f) of
the Code.
1.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Option Agreement. Except when otherwise indicated by the
context, the singular shall include the plural and the plural shall include the
singular. Use of the term "or" is not intended to be exclusive, unless the
context clearly requires otherwise.
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2. ELIGIBILITY AND TYPE OF OPTIONS.
2.1 TAX STATUS OF OPTION. This Option is intended to be a
nonstatutory stock option and shall not be treated as an incentive stock option
within the meaning of Section 422(b) of the Code.
2.2 PERSONS ELIGIBLE FOR OPTIONS. This Option shall be granted
only to a person who at the time of grant, is an Outside Director.
3. ADMINISTRATION.
All questions of interpretation of this Option Agreement shall
be determined by the Board, and such determinations shall be final and binding
upon all persons having an interest in this Option Agreement. Any Officer of a
Participating Company shall have the authority to act on behalf of the Company
with respect to any matter, right, obligation, determination or election which
is the responsibility of or which is allocated to the Company herein, provided
the Officer has apparent authority with respect to such matter, right,
obligation, determination or election.
4. EXERCISE OF THE OPTION.
4.1 RIGHT TO EXERCISE. Except as otherwise provided herein,
the Option shall (i) first become exercisable on the Initial Vesting Date and
(ii) be exercisable on and after the Initial Vesting Date and prior to the
termination thereof in an amount equal to the number of shares of Stock
initially subject to the Option multiplied by the Vested Ratio as set forth in
Section 1.1 (e), less the number of shares previously acquired upon exercise
thereof.
4.2 METHOD OF EXERCISE. Exercise of the Option shall be by
written notice to the Company which must state the election to exercise the
Option, the number of whole shares of Stock for which the Option is being
exercised and such other representations and agreements as to the Optionee's
investment intent with respect to such shares as may be required pursuant to the
provisions of this Option Agreement. The written notice must be signed by the
Optionee and must be delivered in person, by certified or registered mail,
return receipt requested, by confirmed facsimile transmission, or by such other
means as the Company may permit, to the Chief Financial Officer of the Company,
or other authorized representative of the Participating Company Group, prior to
the termination of the Option as set forth in Section 6, accompanied by full
payment of the aggregate Exercise Price for the number of shares of Stock being
purchased. The Option shall be deemed to be exercised upon receipt by the
Company of such written notice, the aggregate Exercise Price, and, if required
by the Company, such executed agreement.
4.3 PAYMENT OF EXERCISE PRICE.
(a) FORMS OF CONSIDERATION AUTHORIZED. Except as
otherwise provided below, payment of the aggregate Exercise Price for the number
of shares of Stock for which the Option is being exercised shall be made (i) in
cash, by check, or cash equivalent, (ii) by tender to the Company, or
attestation to the ownership, of whole shares of Stock owned by the Optionee
having a Fair Market Value not less than the aggregate Exercise Price, (iii) by
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the assignment of the proceeds of a sale or loan with respect to some or all of
the shares being acquired upon the exercise of the Option (including, without
limitation, through an exercise complying with the provisions of Regulation T as
promulgated from time to time by the Board of Governors of the Federal Reserve
System) (a "CASHLESS EXERCISE"), or (iv) by any combination of the foregoing.
(b) LIMITATION ON TENDER OF STOCK. Notwithstanding
the foregoing, the Option may not be exercised by tender to the Company, or
attestation to the ownership, of shares of Stock to the extent such tender or
attestation would constitute a violation of the provisions of any law,
regulation or agreement restricting the redemption of the Company's stock.
Unless otherwise provided by the Board, the Option may not be exercised by
tender to the Company of shares of Stock, unless such shares either have been
owned by the Optionee for more than six (6) months or were acquired, directly or
indirectly from the Company.
(c) CASHLESS EXERCISE. The Company reserves, at any
and all times, the right, in the Company's sole and absolute discretion, to
establish, decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise.
4.4 TAX WITHHOLDING. At the time the Option is exercised, in
whole or in part, or at any time thereafter as requested by the Company, the
Optionee hereby authorizes withholding from any amounts payable to the Optionee,
and otherwise agrees to make adequate provision for any sums required to satisfy
the federal, state, local and foreign tax withholding obligations of the
Participating Company Group, if any, which arise in connection with the Option
or the shares acquired upon exercise of the Option. The Option is not
exercisable unless the tax withholding obligations of the Participating Company
Group are satisfied. Accordingly, the Company shall have no obligation to
deliver shares of Stock pursuant to this Option Agreement until the tax
withholding obligations of the Participating Company Group have been satisfied
by the Optionee.
4.5 CERTIFICATE REGISTRATION. The certificate for the shares
as to which the Option is exercised shall be registered in the name of the
Optionee.
4.6 RESTRICTIONS ON GRANT OF THE OPTION AND ISSUANCE OF
SHARES. The grant of the Option and the issuance of shares of Stock upon
exercise of the Option shall be subject to compliance with all applicable
requirements of federal, state or foreign law with respect to such securities.
The Option may not be exercised if the issuance of shares of Stock upon exercise
would constitute a violation of any applicable federal, state or foreign
securities laws or other law or regulations or the requirements of any stock
exchange or market system upon which the Stock may then be listed. In addition,
the Option may not be exercised unless (i) a registration statement under the
Securities Act shall at the time of exercise of the Option be in effect with
respect to the shares issuable upon exercise of the Option or (ii) in the
opinion of legal counsel to the Company, the shares issuable upon exercise of
the Option may be issued in accordance with the terms of an applicable exemption
from the registration requirements of the Securities Act. THE OPTIONEE IS
CAUTIONED THAT THE OPTION MAY NOT BE EXERCISED UNLESS THE FOREGOING CONDITIONS
ARE SATISFIED. ACCORDINGLY, THE OPTIONEE MAY NOT BE ABLE TO EXERCISE THE OPTION
WHEN DESIRED EVEN
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THOUGH THE OPTION IS VESTED. The inability of the Company to obtain from any
regulatory body having jurisdiction the authority, if any, deemed by the
Company's legal counsel to be necessary to the lawful issuance and sale of any
shares subject to the Option shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained. As a condition to the exercise of the
Option, the Company may require the Optionee to satisfy any qualifications that
may be necessary or appropriate, to evidence compliance with any applicable law
or regulation and to make any representation or warranty with respect thereto as
may be requested by the Company.
4.7 FRACTIONAL SHARES. The Company shall not be required to
issue fractional shares upon the exercise of the Option.
5. NONTRANSFERABILITY OF THE OPTION.
The Option may be exercised during the lifetime of the
Optionee only by the Optionee or the Optionee's guardian or legal representative
and may not be assigned or transferred in any manner except by will or by the
laws of descent and distribution. Following the death of the Optionee, the
Option, to the extent provided in Section 7, may be exercised by the Optionee's
legal representative or by any person empowered to do so under the deceased
Optionee's will or under the then applicable laws of descent and distribution.
6. TERMINATION OF THE OPTION.
The Option shall terminate and may no longer be exercised
after the first to occur of (a) the Option Expiration Date, (b) the last date
for exercising the Option following termination of the Optionee's Service as
described in Section 7, or (c) a Change in Control to the extent provided in
Section 8.
7. EFFECT OF TERMINATION OF SERVICE.
7.1 OPTION EXERCISABILITY.
(a) DISABILITY. If the Optionee's Service with the
Participating Company Group is terminated because of the Disability of the
Optionee, the Option, to the extent unexercised and exercisable on the date on
which the Optionee's Service terminated, may be exercised by the Optionee (or
the Optionee's guardian or legal representative) at any time prior to the
expiration of twelve (12) months after the date on which the Optionee's Service
terminated, but in any event no later than the Option Expiration Date.
(b) DEATH. If the Optionee's Service with the
Participating Company Group is terminated because of the death of the Optionee,
the Option, to the extent unexercised and exercisable on the date on which the
Optionee's Service terminated, may be exercised by the Optionee (or the
Optionee's legal representative or other person who acquired the right to
exercise the Option by reason of the Optionee's death) at any time prior to the
expiration of twelve (12) months after the date on which the Optionee's Service
terminated, but in any event no later than the Option Expiration Date. The
Optionee's Service shall be deemed to have
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terminated on account of death if the Optionee dies within three (3) months
after the Optionee's termination of Service.
(c) OTHER TERMINATION OF SERVICE. If the Optionee's
Service with the Participating Company Group terminates for any reason, except
Disability or death, the Option, to the extent unexercised and exercisable by
the Optionee on the date on which the Optionee's Service terminated, may be
exercised by the Optionee within three (3) months after the date on which the
Optionee's Service terminated, but in any event no later than the Option
Expiration Date.
7.2 EXTENSION IF EXERCISE PREVENTED BY LAW. Notwithstanding
the foregoing, if the exercise of the Option within the applicable time periods
set forth in Section 7.1 is prevented by the provisions of Section 4.6, the
Option shall remain exercisable until three (3) months after the date the
Optionee is notified by the Company that the Option is exercisable, but in any
event no later than the Option Expiration Date.
7.3 EXTENSION IF OPTIONEE IS SUBJECT TO SECTION 16(b).
Notwithstanding the foregoing, if a sale, within the applicable time periods set
forth in Section 7.1, of shares acquired upon the exercise of the Option would
subject the Optionee to suit under Section 16(b) of the Exchange Act, the Option
shall remain exercisable until the earliest to occur of (i) the tenth (10th) day
following the date on which a sale of such shares by the Optionee would no
longer be subject to such suit, (ii) the one hundred and ninetieth (190th) day
after the Optionee's termination of Service, or (iii) the Option Expiration
Date.
8. TRANSFER OF CONTROL.
8.1 DEFINITIONS.
(a) 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.
(b) A "TRANSFER OF CONTROL" shall mean an Ownership
Change Event or a series of related Ownership Change Events (collectively, a
"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 securities of the Company or, in the case of a Transaction
described in Section 8.1(a)(iii), the corporation to which the assets of the
Company were transferred (the "TRANSFEREE"), as the case may be. For purposes of
the preceding sentence, indirect beneficial ownership shall include, without
limitation, an interest resulting from ownership of the voting securities of one
or more corporations which, as a result of a Transaction, own the Company or the
Transferee, as the case may be, either directly or through one or more
subsidiary corporations. The Board shall have the right to determine whether
multiple sales or exchanges of
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the voting securities of the Company or multiple Ownership Change Events are
related, and its determination shall be final, binding and conclusive.
8.2 EFFECT OF A TRANSFER OF CONTROL ON OPTION. In the event of
a Transfer of Control, any unexercisable or unvested portion of the outstanding
Options shall be immediately exercisable and vested in full as of the date ten
(10) days prior to the date of the Transfer of Control. The exercise or vesting
of any Option that was permissible solely by reason of this Section 8.2 shall be
conditioned upon the consummation of the Transfer of Control. In addition, the
surviving, continuing, successor, or purchasing corporation or parent
corporation thereof, as the case may be (the "ACQUIRING CORPORATION"), may
either assume the Company's rights and obligations under outstanding Options or
substitute for outstanding Options substantially equivalent options for the
Acquiring Corporation's stock. Any Options which are neither assumed or
substituted for by the Acquiring Corporation in connection with the Transfer of
Control nor exercised as of the date of the Transfer of Control shall terminate
and cease to be outstanding effective as of the date of the Transfer of Control.
Notwithstanding the foregoing, shares acquired upon exercise of the Option prior
to the Transfer of Control and any consideration received pursuant to the
Transfer of Control with respect to such shares shall continue to be subject to
all applicable provisions of this Option Agreement except as otherwise provided
herein. Furthermore, notwithstanding the foregoing, if the corporation the stock
of which is subject to the outstanding Options immediately prior to an Ownership
Change Event described in Section 8.1(a)(i) constituting a Transfer of Control
is the surviving or continuing corporation and immediately after such Ownership
Change Event less than fifty percent (50%) of the total combined voting power of
its voting stock is held by another corporation or by other corporations that
are members of an affiliated group within the meaning of Section 1504(a) of the
Code without regard to the provisions of Section 1504(b) of the Code, the
outstanding Options shall not terminate.
9. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE.
In the event of any stock dividend, stock split, reverse stock
split, recapitalization, combination, reclassification, or similar change in the
capital structure of the Company, appropriate adjustments shall be made in the
number, Exercise Price and class of shares of stock subject to the Option. If a
majority of the shares which are of the same class as the shares that are
subject to the Option are exchanged for, converted into, or otherwise become
(whether or not pursuant to an Ownership Change Event) shares of another
corporation (the "NEW SHARES"), the Board may unilaterally amend the Option to
provide that the Option is exercisable for New Shares. In the event of any such
amendment, the Number of Option Shares and the Exercise Price shall be adjusted
in a fair and equitable manner, as determined by the Board, in its discretion.
Notwithstanding the foregoing, any fractional share resulting from an adjustment
pursuant to this Section 9 shall be rounded down to the nearest whole number,
and in no event may the Exercise Price be decreased to an amount less than the
par value, if any, of the stock subject to the Option. The adjustments
determined by the Board pursuant to this Section 9 shall be final, binding and
conclusive.
10. RIGHTS AS A STOCKHOLDER OR SERVICE PROVIDER.
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The Optionee shall have no rights as a stockholder with
respect to any shares covered by the Option until the date of the issuance of a
certificate for the shares for which the Option has been exercised (as evidenced
by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company). No adjustment shall be made for dividends,
distributions or other rights for which the record date is prior to the date
such certificate is issued, except as provided in Section 9. Nothing in this
Option Agreement shall confer upon the Optionee any right to continue in the
Service of a Participating Company or interfere in any way with any right of the
Participating Company Group to terminate the Optionee's Service at any time.
11. REPRESENTATIONS AND WARRANTIES.
In connection with the receipt of the Option and any
acquisition of shares upon the exercise thereof (collectively, the
"SECURITIES"), the Optionee hereby agrees, represents and warrants as follows:
11.1 INVESTMENT INTENT. The Optionee is acquiring the
Securities solely for the Optionee's own account for investment and not with a
view to or for sale in connection with any distribution of the Securities or any
portion thereof and not with any present intention of selling, offering to sell
or otherwise disposing of or distributing the Securities or any portion thereof
in any transaction other than a transaction exempt from registration under the
Securities Act. The Optionee further represents that the entire legal and
beneficial interest of the Securities is being acquired, and will be held, for
the account of the Optionee only and neither in whole nor in part for any other
person.
11.2 ABSENCE OF SOLICITATION. The Optionee was not presented
with or solicited by any form of general solicitation or general advertising,
including, but not limited to, any advertisement, article, notice, or other
communication published in any newspaper, magazine, or similar media, or
broadcast over television, radio or similar communications media, or presented
at any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
11.3 INFORMATION CONCERNING THE COMPANY. The Optionee is aware
of the Company's business affairs and financial condition and has acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the Securities. The Optionee further represents and warrants
that the Optionee has discussed the Company and its plans, operations and
financial condition with its Officers, has received all such information as the
Optionee deems necessary and appropriate to enable the Optionee to evaluate the
financial risk inherent in acquiring the Securities and has received
satisfactory and complete information concerning the business and financial
condition of the Company in response to all inquiries in respect thereof.
11.4 ECONOMIC RISK. The Optionee realizes that its acquisition
of the Securities will be a highly speculative investment and that the Optionee
is able, without impairing its financial condition, to hold the Securities for
an indefinite period of time and to suffer a complete loss on the Optionee's
investment.
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11.5 CAPACITY TO PROTECT INTERESTS. The Optionee has (i) a
preexisting personal or business relationship with the Company or any of its
Officers, directors, or controlling persons, consisting of personal or business
contacts of a nature and duration to enable the Optionee to be aware of the
character, business acumen and general business and financial circumstances of
the person with whom such relationship exists, or (ii) such knowledge and
experience in financial and business matters as to make the Optionee capable of
evaluating the merits and risks of an investment in the Securities and to
protect the Optionee's own interests in the transaction, or (iii) both such
relationship and such knowledge and experience.
11.6 RESTRICTED SECURITIES. The Optionee understands and
acknowledges that:
(a) The issuance of the Securities to the Optionee
has not been registered under the Securities Act, and the Securities must be
held indefinitely unless a transfer of the Securities is subsequently registered
under the Securities Act or an exemption from such registration is available,
and that the Company is under no obligation to register the Securities;
(b) The Company will make a notation in its records
of the aforementioned restrictions on transfer and legends.
11.7 DISPOSITION UNDER RULE 144. The Optionee understands that
any shares acquired upon exercise of the Option will be restricted securities
within the meaning of Rule 144 promulgated under the Securities Act; that the
exemption from registration under Rule 144 will not be available in any event
for at least one year from the date of acquisition of the shares, and even then
will not be available unless (a) a public trading market then exists for the
Common Stock of the Company, (b) adequate information concerning the Company is
then available to the public, and (c) other terms and conditions of Rule 144 are
complied with; and that any sale of the shares may be made only in limited
amounts in accordance with such terms and conditions. There can be no assurance
that the requirements of Rule 144 will be met, or that the shares will ever be
salable.
11.8 FURTHER LIMITATIONS ON DISPOSITION. Without in any way
limiting the Optionee's representations and warranties set forth above, the
Optionee further agrees that the Optionee will in no event make any disposition
of all or any portion of any shares which the Optionee acquires upon exercise of
the Option unless:
(a) There is then in effect a Registration Statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with said Registration Statement; or
(b) The Optionee will have notified the Company of
the proposed disposition and furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and either:
(i) The Optionee will have furnished the Company
with an opinion of the Optionee's own counsel to the effect that such
disposition will not require registration of such shares under the Securities
Act, and such opinion of the Optionee's counsel will have been concurred in by
counsel for the Company and the Company will have advised the Optionee of such
concurrence; or
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(ii) The disposition is made in compliance
with Rule 144 after the Optionee has furnished the Company such detailed
statement and after the Company has had a reasonable opportunity to discuss the
matter with the Optionee.
12. LEGENDS.
The Company may at any time place legends referencing any
applicable federal, state or foreign securities law restrictions on all
certificates representing shares of stock subject to the provisions of this
Option Agreement. The Optionee shall, at the request of the Company, promptly
present to the Company any and all certificates representing shares acquired
pursuant to the Option in the possession of the Optionee in order to carry out
the provisions of this Section.
13. MISCELLANEOUS PROVISIONS.
13.1 BINDING EFFECT. Subject to the restrictions on transfer
set forth herein, this Option Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
13.2 TERMINATION OR AMENDMENT. The Board may terminate or
amend the Option at any time; provided, however, that except as provided in
Section 8.2 in connection with a Transfer of Control, no such termination or
amendment may adversely affect the Option or any unexercised portion hereof
without the consent of the Optionee unless such termination or amendment is
necessary to comply with any applicable law or government regulation. No
amendment or addition to this Option Agreement shall be effective unless in
writing.
13.3 NOTICES. Any notice required or permitted hereunder shall
be given in writing and shall be deemed effectively given (except to the extent
that this Option Agreement provides for effectiveness only upon actual receipt
of such notice) upon personal delivery or upon deposit in the United States Post
Office, by registered or certified mail, with postage and fees prepaid,
addressed to the other party at the address shown below that party's signature
or at such other address as such party may designate in writing from time to
time to the other party.
13.4 INTEGRATED AGREEMENT. This Option Agreement constitutes
the entire understanding and agreement of the Optionee and the Participating
Company Group with respect to the subject matter contained herein and supersedes
any prior agreements, understandings, restrictions, representations, or
warranties among the Optionee and the Participating Company Group with respect
to such subject matter other than those as set forth or provided for herein. To
the extent contemplated herein, the provisions of the Option Agreement shall
survive any exercise of the Option and shall remain in full force and effect.
13.5 APPLICABLE LAW. This Option Agreement 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.
13.6 COUNTERPARTS. The Option Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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JDA SOFTWARE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title:
-------------------------------
Address:
00000 X. 00xx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
The Optionee represents that the Optionee has read and is familiar with
the terms and provisions of this Option Agreement, and hereby accepts the option
subject to all of the terms and provisions thereof. The Optionee hereby agrees
to accept as binding, conclusive and final all decisions or interpretations of
the Board upon any questions arising under this Option Agreement.
/s/ xxxxxxx X. Xxxxxx
Date: 5/02/02 ---------------------------------
Xxxxxxx X. Xxxxxx
Optionee Address:
X.X. Xxx 000
Xxxxxx Xxxx, XX 00000
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Optionee: Xxxxxxx X. Xxxxxx
-----------------
Date:
----------------------
NON-PLAN STOCK OPTION EXERCISE NOTICE
JDA Software Group, Inc.
Attention: Chief Financial Officer
00000 X. 00xx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
1. OPTION. The undersigned (the "OPTIONEE") was granted an option (the
"OPTION") to purchase shares of the common stock (the "Shares") of JDA Software
Group, Inc. (the "COMPANY") pursuant to a Stock Option Agreement (the "OPTION
AGREEMENT") as follows:
Grant Number: NSP-1
Date of Option Grant: March 4 1999
Number of Option Shares: 18.750
Exercise Price per Share: $ 6.4375
2. EXERCISE OF OPTION. The Optionee hereby elects to exercise the
Option to purchase the following number of Shares:
Vested Shares:
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Total Shares Purchased:
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Total Exercise Price (Total Shares X Price per Share) $
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3. PAYMENTS. The Optionee encloses payment in full of the total
exercise price for the Shares in the following form(s), as authorized by the
Option Agreement:
[ ] Cash: $
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[ ] Check: $
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[ ] Tender of Company Stock: Contact Stock Administrator
4. OPTIONEE INFORMATION.
Address is:
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Tax Identification Number is:
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5. BINDING EFFECT. The Optionee agrees that the Shares are being
acquired in accordance with and subject to the terms, provisions and conditions
of the Option Agreement to all of which it hereby
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expressly assents. This Agreement shall inure to the benefit of and be binding
upon the Optionee's successors and assigns.
6. TRANSFER. The Optionee understands and acknowledge that the Shares
have not been registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and that consequently the Shares must be held indefinitely
unless they are subsequently registered under the Securities Act, an exemption
from such registration is available, or they are sold in accordance with Rule
144 under the Securities Act. The Optionee further understands and acknowledges
that the Company is under no obligation to register the Shares. The Optionee
understands that the certificate or certificates evidencing the Shares will be
imprinted with legends which prohibit the transfer of the Shares unless they are
registered or such registration is not required in the opinion of legal counsel
satisfactory to the Company.
The Optionee is aware that Rule 144 under the Securities Act, which
permits limited public resale of securities acquired in a nonpublic offering, is
not currently available with respect to the Shares and, in any event, is
available only if certain conditions are satisfied. The Optionee understands
that any sale of the Shares that might be made in reliance upon Rule 144 may
only be made in limited amounts in accordance with the terms and conditions of
such rule and that a copy of Rule 144 will be delivered to me upon request.
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Xxxxxxx X. Xxxxxx
Receipt of the above is hereby acknowledged.
JDA SOFTWARE GROUP, INC.
By:
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Title:
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Dated:
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