Exhibit 10.3
JDA SOFTWARE GROUP, INC.
RESTRICTED STOCK AGREEMENT
(XXXXXX)
JDA Software Group, Inc. has granted to the Participant named in the
Notice of Grant of Restricted Stock (the "GRANT NOTICE") to which this
Restricted Stock Agreement (the "AGREEMENT") is attached an Award consisting of
Shares subject to the terms and conditions set forth in the Grant Notice and
this Agreement. The Award has been granted pursuant to the JDA Software Group,
Inc. 2005 Performance Incentive Plan (the "PLAN"), as amended to the Date of
Grant, the provisions of which are incorporated herein by reference. By signing
the Grant Notice, the Participant: (a) acknowledges receipt of and represents
that the Participant has read and is familiar with the Grant Notice, this
Agreement, the Plan and a prospectus for the Plan in the form most recently
registered with the Securities and Exchange Commission (the "PLAN PROSPECTUS"),
(b) accepts the Award subject to all of the terms and conditions of the Grant
Notice, this Agreement and the Plan and (c) agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon any
questions arising under the Grant Notice, this Agreement or the Plan.
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. Unless otherwise defined herein, capitalized terms
shall have the meanings assigned to such terms in the Grant Notice or the Plan.
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 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.
2. ADMINISTRATION.
All questions of interpretation concerning the Grant Notice and this
Agreement shall be determined by the Committee. All determinations by the
Committee shall be final and binding upon all persons having an interest in the
Award. Any Officer shall have the authority to act on behalf of the Company with
respect to any matter, right, obligation, 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,
or election.
3. THE AWARD.
3.1 GRANT AND ISSUANCE OF SHARES. On the Date of Grant, the
Participant shall acquire and the Company shall issue, subject to the provisions
of this Agreement, a number of Shares equal to the Total Number of Shares set
forth in the Grant Notice. As a condition to the issuance of the Shares, the
Participant shall execute and deliver to the Company along with the Grant Notice
the Assignment Separate from Certificate duly endorsed (with date and number of
shares blank) in the form attached to the Grant Notice.
3.2 NO MONETARY PAYMENT REQUIRED. The Participant is not required to
make any monetary payment (other than applicable tax withholding, if any) as a
condition to receiving the Shares, the consideration for which shall be past
services actually rendered and/or future services to be rendered to a
Participating Company or for its benefit. Notwithstanding the foregoing, if
required by applicable state corporate law, the Participant shall furnish
consideration in the form of cash or past services rendered to a Participating
Company or for its benefit having a value not less than the par value of the
Shares issued pursuant to the Award.
3.3 BENEFICIAL OWNERSHIP OF SHARES; CERTIFICATE REGISTRATION. The
Participant hereby authorizes the Company, in its sole discretion, to deposit
the Shares with the Company's transfer agent, including any successor transfer
agent, to be held in book entry form during the term of the Escrow pursuant to
Section 6. Furthermore, the Participant hereby authorizes the Company, in its
sole discretion, to deposit, following the term of such Escrow, for the benefit
of the Participant with any broker that the Company requires the Participant to
have an account relationship with, any or all Shares which are no longer subject
to such Escrow. Except as provided by the foregoing, a certificate for the
Shares shall be registered in the name of the Participant, or, if applicable, in
the names of the heirs of the Participant.
3.4 ISSUANCE OF SHARES IN COMPLIANCE WITH LAW. The issuance of the
Shares shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. No Shares shall
be issued hereunder if their issuance 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. 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 of any Shares shall relieve the
Company of any liability in respect of the failure to issue such Shares as to
which such requisite authority shall not have been obtained. As a condition to
the issuance of the Shares, the Company may require the Participant 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. VESTING OF SHARES.
4.1 NORMAL VESTING. Except as provided in Section 4.2, the Shares
shall vest and become Vested Shares as provided in the Grant Notice.
4.2 ACCELERATION OF VESTING UPON A CHANGE IN CONTROL. In the event
of a Change in Control, the vesting of the Shares shall be accelerated in full
and the Total Number of Shares shall be deemed Vested Shares effective as of the
date of the Change in Control, provided that the Participant's Service has not
terminated prior to such date.
4.3 FEDERAL EXCISE TAX UNDER SECTION 4999 OF THE CODE.
(A) EXCESS PARACHUTE PAYMENT. In the event that any acceleration of
vesting pursuant to this Agreement and any other payment or benefit received or
to be received by the Participant would subject the Participant to any excise
tax pursuant to Section 4999 of the
2
Code due to the characterization of such acceleration of vesting, payment or
benefit as an excess parachute payment under Section 280G of the Code, the
Participant may elect, in his or her sole discretion, to reduce the amount of
any acceleration of vesting called for under this Agreement in order to avoid
such characterization.
(B) DETERMINATION BY INDEPENDENT ACCOUNTANTS. To aid the Participant
in making any election called for under Section 4.3(a), upon the occurrence of
any event that might reasonably be anticipated to give rise to the acceleration
of vesting under Section 4.2 (an "EVENT"), the Company shall promptly request a
determination in writing by independent public accountants selected by the
Company (the "ACCOUNTANTS"). Unless the Company and the Participant otherwise
agree in writing, the Accountants shall determine and report to the Company and
the Participant within twenty (20) days of the date of the Event the amount of
such acceleration of vesting, payments and benefits which would produce the
greatest after-tax benefit to the Participant. For the purposes of such
determination, the Accountants may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and the Participant shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make their required determination. The Company shall bear all fees and expenses
the Accountants may reasonably charge in connection with their services
contemplated by this Section.
5. COMPANY REACQUISITION RIGHT.
5.1 GRANT OF COMPANY REACQUISITION RIGHT. Except to the extent
otherwise provided in an employment agreement between a Participating Company
and the Participant which refers to this Award, in the event that (a) the
Participant's Service terminates for any reason or no reason, with or without
Cause, or (b) the Participant, the Participant's legal representative, or other
holder of the Shares, attempts to sell, exchange, transfer, pledge, or otherwise
dispose of (other than pursuant to an Ownership Change Event), including,
without limitation, any transfer to a nominee or agent of the Participant, any
Shares which are not Vested Shares ("UNVESTED SHARES"), the Company shall
automatically reacquire the Unvested Shares, and the Participant shall not be
entitled to any payment therefor (the "COMPANY REACQUISITION RIGHT").
5.2 OWNERSHIP CHANGE EVENT. Upon the occurrence of an Ownership
Change Event, any and all new, substituted or additional securities or other
property to which the Participant is entitled by reason of the Participant's
ownership of Unvested Shares shall be immediately subject to the Company
Reacquisition Right and included in the terms "Shares," "Stock" and "Unvested
Shares" for all purposes of the Company Reacquisition Right with the same force
and effect as the Unvested Shares immediately prior to the Ownership Change
Event. For purposes of determining the number of Vested Shares following an
Ownership Change Event, credited Service shall include all Service with any
corporation which is a Participating Company at the time the Service is
rendered, whether or not such corporation is a Participating Company both before
and after the Ownership Change Event.
3
6. ESCROW.
6.1 APPOINTMENT OF AGENT. To ensure that Shares subject to the
Company Reacquisition Right will be available for reacquisition, the Participant
and the Company hereby appoint the Secretary of the Company, or any other person
designated by the Company, as their agent and as attorney-in-fact for the
Participant (the "AGENT") to hold any and all Unvested Shares and to sell,
assign and transfer to the Company any such Unvested Shares reacquired by the
Company pursuant to the Company Reacquisition Right. The Participant understands
that appointment of the Agent is a material inducement to make this Agreement
and that such appointment is coupled with an interest and is irrevocable. The
Agent shall not be personally liable for any act the Agent may do or omit to do
hereunder as escrow agent, agent for the Company, or attorney in fact for the
Participant while acting in good faith and in the exercise of the Agent's own
good judgment, and any act done or omitted by the Agent pursuant to the advice
of the Agent's own attorneys shall be conclusive evidence of such good faith.
The Agent may rely upon any letter, notice or other document executed by any
signature purporting to be genuine and may resign at any time.
6.2 ESTABLISHMENT OF ESCROW. The Participant authorizes the Company
to deposit the Unvested Shares with the Company's transfer agent to be held in
book entry form, as provided in Section 3.3, and the Participant agrees to
deliver to and deposit with the Agent each certificate, if any, evidencing the
Shares and an Assignment Separate from Certificate with respect to such book
entry shares and each such certificate duly endorsed (with date and number of
Shares blank) in the form attached to the Grant Notice, to be held by the Agent
under the terms and conditions of this Section 6 (the "ESCROW"). Upon the
occurrence of an Ownership Change Event or a change, as described in Section 8,
in the character or amount of any outstanding stock of the corporation the stock
of which is subject to the provisions of this Agreement, any and all new,
substituted or additional securities or other property to which the Participant
is entitled by reason of his or her ownership of the Shares that remain,
following such Ownership Change Event or change described in Section 8, subject
to the Company Reacquisition Right shall be immediately subject to the Escrow to
the same extent as the Shares immediately before such event. The Company shall
bear the expenses of the Escrow.
6.3 DELIVERY OF SHARES TO PARTICIPANT. The Escrow shall continue
with respect to any Shares for so long as such Shares remain subject to the
Company Reacquisition Right. Upon termination of the Reacquisition Right with
respect to Shares, the Company shall so notify the Agent and direct the Agent to
deliver such number of Shares to the Participant. As soon as practicable after
receipt of such notice, the Agent shall cause to be delivered to the Participant
the Shares specified by such notice, and the Escrow shall terminate with respect
to such Shares.
7. TAX MATTERS.
7.1 TAX WITHHOLDING.
(A) IN GENERAL. At the time the Grant Notice is executed, or at any
time thereafter as requested by a Participating Company, the Participant hereby
authorizes withholding from payroll and any other amounts payable to the
Participant, and otherwise agrees
4
to make adequate provision for, any sums required to satisfy the federal, state,
local and foreign tax withholding obligations of the Participating Company, if
any, which arise in connection with the Award, including, without limitation,
obligations arising upon (a) the transfer of Shares to the Participant, (b) the
lapsing of any restriction with respect to any Shares, (c) the filing of an
election to recognize tax liability, or (d) the transfer by the Participant of
any Shares. The Company shall have no obligation to deliver the Shares or to
release any Shares from the Escrow established pursuant to Section 6 until the
tax withholding obligations of the Participating Company have been satisfied by
the Participant.
(B) WITHHOLDING IN SHARES. Unless otherwise determined by the
Company, in its sole discretion, the Company satisfy all of a Participating
Company's tax withholding obligations (except with respect to any fractional
share) by withholding a number of whole Vested Shares otherwise deliverable to
the Participant or by requiring the Participant to tender to the Company a
number of whole Vested Shares or vested shares acquired otherwise than pursuant
to the Award having, in any such case, a Fair Market Value, as determined by the
Company as of the date on which the tax withholding obligations arise, not in
excess of the amount of such tax withholding obligations determined by the
applicable minimum statutory withholding rates. The Company is hereby authorized
to satisfy the tax withholding obligations, if any, remaining following the
procedure described in this Section 7.1(b) by withholding from payroll and any
other amounts payable to the Participant.
7.2 ELECTION UNDER SECTION 83(b) OF THE CODE.
(a) The Participant understands that Section 83 of the Code taxes as
ordinary income the difference between the amount paid for the Shares, if
anything, and the fair market value of the Shares as of the date on which the
Shares are "substantially vested," within the meaning of Section 83. In this
context, "substantially vested" means that the right of the Company to reacquire
the Shares pursuant to the Company Reacquisition Right has lapsed. The
Participant understands that he or she may elect to have his or her taxable
income determined at the time he or she acquires the Shares rather than when and
as the Company Reacquisition Right lapses by filing an election under Section
83(b) of the Code with the Internal Revenue Service no later than thirty (30)
days after the date of acquisition of the Shares. The Participant understands
that failure to make a timely filing under Section 83(b) will result in his or
her recognition of ordinary income, as the Company Reacquisition Right lapses,
on the difference between the purchase price, if anything, and the fair market
value of the Shares at the time such restrictions lapse. The Participant further
understands, however, that if Shares with respect to which an election under
Section 83(b) has been made are forfeited to the Company pursuant to its Company
Reacquisition Right, such forfeiture will be treated as a sale on which there is
realized a loss equal to the excess (if any) of the amount paid (if any) by the
Participant for the forfeited Shares over the amount realized (if any) upon
their forfeiture. If the Participant has paid nothing for the forfeited Shares
and has received no payment upon their forfeiture, the Participant understands
that he or she will be unable to recognize any loss on the forfeiture of the
Shares even though the Participant incurred a tax liability by making an
election under Section 83(b).
(b) The Participant understands that he or she should consult with
his or her tax advisor regarding the advisability of filing with the Internal
Revenue Service an election under Section 83(b) of the Code, which must be filed
no later than thirty (30) days after
5
the date of the acquisition of the Shares pursuant to this Agreement. Failure to
file an election under Section 83(b), if appropriate, may result in adverse tax
consequences to the Participant. The Participant acknowledges that he or she has
been advised to consult with a tax advisor regarding the tax consequences to the
Participant of the acquisition of Shares hereunder. ANY ELECTION UNDER SECTION
83(b) THE PARTICIPANT WISHES TO MAKE MUST BE FILED NO LATER THAN 30 DAYS AFTER
THE DATE ON WHICH THE PARTICIPANT ACQUIRES THE SHARES. THIS TIME PERIOD CANNOT
BE EXTENDED. THE PARTICIPANT ACKNOWLEDGES THAT TIMELY FILING OF A SECTION 83(b)
ELECTION IS THE PARTICIPANT'S SOLE RESPONSIBILITY, EVEN IF THE PARTICIPANT
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER
BEHALF.
(c) The Participant will notify the Company in writing if the
Participant files an election pursuant to Section 83(b) of the Code. The Company
intends, in the event it does not receive from the Participant evidence of such
filing, to claim a tax deduction for any amount which would otherwise be taxable
to the Participant in the absence of such an election.
8. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE.
Subject to any required action by the stockholders of the Company,
in the event of any change in the Stock effected without receipt of
consideration by the Company, whether through merger, consolidation,
reorganization, reincorporation, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares, or similar change in the capital
structure of the Company, or in the event of payment of a dividend or
distribution to the stockholders of the Company in a form other than Stock
(excepting normal cash dividends) that has a material effect on the Fair Market
Value of shares of Stock, appropriate adjustments shall be made in the number
and kind of shares subject to the Award, in order to prevent dilution or
enlargement of the Participant's rights under the Award. For purposes of the
foregoing, conversion of any convertible securities of the Company shall not be
treated as "effected without receipt of consideration by the Company." Any
fractional share resulting from an adjustment pursuant to this Section shall be
rounded down to the nearest whole number. Such adjustments shall be determined
by the Committee, and its determination shall be final, binding and conclusive.
9. RIGHTS AS A STOCKHOLDER, DIRECTOR, EMPLOYEE OR CONSULTANT.
The Participant shall have no rights as a stockholder with respect
to any Shares subject to the Award until the date of the issuance of the Shares
(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 the Shares are issued, except as provided in Section 8. Subject the
provisions of this Agreement, the Participant shall exercise all rights and
privileges of a stockholder of the Company with respect to Shares deposited in
the Escrow pursuant to Section 6. If the Participant is an Employee, the
Participant understands and acknowledges that, except as otherwise provided in a
separate, written employment agreement between a Participating Company and the
Participant, the Participant's employment is "at will" and is for no specified
term. Nothing in
6
this Agreement shall confer upon the Participant 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 Participant's Service at any time.
10. LEGENDS.
The Company may at any time place legends referencing the Company
Reacquisition Right and any applicable federal, state or foreign securities law
restrictions on all certificates representing the Shares. The Participant shall,
at the request of the Company, promptly present to the Company any and all
certificates representing the Shares in the possession of the Participant in
order to carry out the provisions of this Section. Unless otherwise specified by
the Company, legends placed on such certificates may include, but shall not be
limited to, the following:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS SET FORTH IN AN AGREEMENT BETWEEN THIS CORPORATION AND THE
REGISTERED HOLDER, OR HIS PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL OFFICE OF THIS CORPORATION."
11. TRANSFERS IN VIOLATION OF AGREEMENT.
No Shares may be sold, exchanged, transferred, assigned, pledged,
hypothecated or otherwise disposed of, including by operation of law, in any
manner which violates any of the provisions of this Agreement and, except
pursuant to an Ownership Change Event, until the date on which such shares
become Vested Shares, and any such attempted disposition shall be void. The
Company shall not be required (a) to transfer on its books any Shares which will
have been transferred in violation of any of the provisions set forth in this
Agreement or (b) to treat as owner of such Shares or to accord the right to vote
as such owner or to pay dividends to any transferee to whom such Shares will
have been so transferred. In order to enforce its rights under this Section, the
Company shall be authorized to give a stop transfer instruction with respect to
the Shares to the Company's transfer agent.
12. MISCELLANEOUS PROVISIONS.
12.1 TERMINATION OR AMENDMENT. The Committee may terminate or amend
the Plan or this Agreement at any time; provided, however, that no such
termination or amendment may adversely affect the Participant's rights under
this Agreement without the consent of the Participant unless such termination or
amendment is necessary to comply with applicable law or government regulation.
No amendment or addition to this Agreement shall be effective unless in writing.
12.2 NONTRANSFERABILITY OF THE AWARD. The right to acquire Shares
pursuant to the Award shall not be subject in any manner to anticipation,
alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or
garnishment by creditors of the Participant or the Participant's beneficiary,
except transfer by will or by the laws of descent and
7
distribution. All rights with respect to the Award shall be exercisable during
the Participant's lifetime only by the Participant or the Participant's guardian
or legal representative.
12.3 FURTHER INSTRUMENTS. The parties hereto agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
12.4 BINDING EFFECT. This Agreement shall inure to the benefit of
the successors and assigns of the Company and, subject to the restrictions on
transfer set forth herein, be binding upon the Participant and the Participant's
heirs, executors, administrators, successors and assigns.
12.5 DELIVERY OF DOCUMENTS AND NOTICES. Any document relating to
participation in the Plan or any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given (except to the extent
that this Agreement provides for effectiveness only upon actual receipt of such
notice) upon personal delivery, electronic delivery at the e-mail address, if
any, provided for the Participant by a Participating Company, or upon deposit in
the U.S. Post Office or foreign postal service, by registered or certified mail,
or with a nationally recognized overnight courier service, with postage and fees
prepaid, addressed to the other party at the address shown below that party's
signature to the Grant Notice or at such other address as such party may
designate in writing from time to time to the other party.
(a) DESCRIPTION OF ELECTRONIC DELIVERY. The Plan documents, which
may include but do not necessarily include: the Plan, the Grant Notice, this
Agreement, the Plan Prospectus, and any reports of the Company provided
generally to the Company's stockholders, may be delivered to the Participant
electronically. In addition, the parties may deliver electronically any notices
called for in connection with the Escrow and the Participant may deliver
electronically the Grant Notice to the Company or to such third party involved
in administering the Plan as the Company may designate from time to time. Such
means of electronic delivery may include but do not necessarily include the
delivery of a link to a Company intranet or the internet site of a third party
involved in administering the Plan, the delivery of the document via e-mail or
such other means of electronic delivery specified by the Company.
(b) CONSENT TO ELECTRONIC DELIVERY. The Participant acknowledges
that the Participant has read Section 12.5(a) of this Agreement and consents to
the electronic delivery of the Plan documents, the Grant Notice and notices in
connection with the Escrow, as described in Section 12.5(a). The Participant
acknowledges that he or she may receive from the Company a paper copy of any
documents delivered electronically at no cost to the Participant by contacting
the Company by telephone or in writing. The Participant further acknowledges
that the Participant will be provided with a paper copy of any documents if the
attempted electronic delivery of such documents fails. Similarly, the
Participant understands that the Participant must provide the Company or any
designated third party administrator with a paper copy of any documents if the
attempted electronic delivery of such documents fails. The Participant may
revoke his or her consent to the electronic delivery of documents described in
Section 12.5(a) or may change the electronic mail address to which such
documents are to be delivered (if Participant has provided an electronic mail
address) at any time by notifying the Company of
8
such revoked consent or revised e-mail address by telephone, postal service or
electronic mail. Finally, the Participant understands that he or she is not
required to consent to electronic delivery of documents described in Section
12.5(a).
12.6 INTEGRATED AGREEMENT. The Grant Notice, this Agreement and the
Plan together with any employment, service or other agreement between the
Participant and a Participating Company referring to the Award shall constitute
the entire understanding and agreement of the Participant and the Participating
Company Group with respect to the subject matter contained herein or therein and
supersedes any prior agreements, understandings, restrictions, representations,
or warranties among the Participant and the Participating Company Group with
respect to such subject matter other than those as set forth or provided for
herein or therein. To the extent contemplated herein or therein, the provisions
of the Grant Notice and the Agreement shall survive any settlement of the Award
and shall remain in full force and effect.
12.7 APPLICABLE LAW. This Agreement shall be governed by the laws of
the State of Arizona as such laws are applied to agreements between Arizona
residents entered into and to be performed entirely within the State of Arizona.
12.8 COUNTERPARTS. The Grant Notice 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.
9
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED the undersigned does hereby sell, assign and transfer
unto _________________________ _____________________ (_________________) shares
of the Capital Stock of JDA SOFTWARE GROUP, INC. standing in the undersigned's
name on the books of said corporation represented by Certificate No.
__________________ herewith and does hereby irrevocably constitute and appoint
______________________ Attorney to transfer the said stock on the books of said
corporation with full power of substitution in the premises.
Dated: ___________________________________
______________________________________
Signature
______________________________________
Print Name
Instructions: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its Company
Reacquisition Right set forth in the Restricted Stock Agreement without
requiring additional signatures on the part of the Participant.
