EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT") is
entered into and shall be effective as of July 23, 2002 (the "EFFECTIVE DATE"),
by and among JDA SOFTWARE GROUP, INC., a Delaware corporation ("COMPANY") and
XXXXX X. XXXXXXXXX ("EXECUTIVE").
RECITALS
A. Company, Executive and JDA Software, Inc., an Arizona
corporation and wholly-owned subsidiary of Company, are parties to an Employment
Agreement entered into effective as of January 1, 1998 (the "EMPLOYMENT
AGREEMENT"), pursuant to which Executive has been employed as Co-Chairman of the
Board of Directors of Company.
B. Company's former Co-Chief Executive Officer resigned effective
as of January 4, 1999, and Executive has served as Company's Chief Executive
Officer since such resignation.
C. Company's former Co-Chairman of the Board of Directors
resigned effective June 23, 2000, and Executive has served as Company's sole
Chairman of the Board of Directors since such resignation.
D. Company and Executive desire to amend and restate the
Employment Agreement in its entirety in accordance with Section 9(i) thereof as
hereafter set forth.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, the sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
The Employment Agreement is hereby amended and restated in its entirety
as of the Effective Date.
1. Employment. Company hereby employs Executive, and Executive
hereby accepts such employment, upon the terms and conditions set forth herein.
2. Duties.
2.1 Position. Executive is employed as Chairman of the
Board of Directors ("CHAIRMAN") and Chief Executive Officer ("CEO") of Company.
Executive shall perform faithfully and diligently all duties assigned to
Executive. The Board of Directors of Company ("BOARD") reserves the right to
modify Executive's position and duties at any time in its sole and absolute
discretion, provided that the duties assigned are consistent with the position
of Chairman and CEO.
2.2 Standard of Conduct/Full-time. During the term of
this Agreement, Executive will act loyally and in good faith to discharge the
duties of Chairman and CEO, and will abide by all policies and decisions made by
Company, as well as all applicable federal, state and local laws, regulations or
ordinances. Executive will act solely on behalf of Company at all times.
Executive shall devote Executive's full business time and efforts to the
performance of Executive's assigned duties for Company, unless Executive
notifies the Board in advance of
Executive's intent to engage in other paid work and receives the Board's express
written consent to do so.
2.3 Work Location. Executive's principal place of work
shall be located in Scottsdale, Arizona or such other location as the parties
may agree upon from time to time.
3. Term. The employment relationship pursuant to this Agreement
shall commence on the Effective Date set forth above and continue until
terminated in accordance with the terms of this Agreement (the "EMPLOYMENT
TERM").
4. Compensation.
4.1 Base Salary. As compensation for Executive's
performance of Executive's duties hereunder, Company shall pay to Executive a
salary of $400,000 per year, payable in equal semi-monthly installments of
$16,666.67 and in accordance with the normal payroll practices of Company, less
required deductions for state and federal withholding tax, social security and
all other employment taxes and authorized payroll deductions. Executive's Base
Salary will be reviewed by the parties on or before each anniversary of the
Effective Date and may be increased or decreased from time to time during the
Employment Term by such amount(s) as Company and Executive may agree to in
writing.
4.2 Incentive Compensation. In addition, Executive will
also be eligible to receive incentive compensation subject to the terms and
conditions as the Board may from time to time deem appropriate in its sole and
absolute discretion ("BONUS"). Unless otherwise provided herein, the payment of
any Bonus pursuant to this Section 4.2 shall be made in accordance with the
normal payroll practices of Company, less required deductions for state and
federal withholding tax, social security and all other employment taxes and
authorized payroll deductions.
4.3 Performance and Salary Review. The Board will
periodically review Executive's performance on no less than an annual basis.
Adjustments to salary or other compensation, if any, will be made by the Board
in its sole and absolute discretion.
5. Benefits.
5.1 Fringe Benefits and Facilities. Executive will be
eligible for all customary and usual fringe benefits generally available to
executives of Company subject to the terms and conditions of Company's benefit
plan documents. Company reserves the right to change or eliminate the fringe
benefits on a prospective basis, at any time, effective upon notice to
Executive; provided, however, that during the period of employment under this
Agreement, Executive (and his spouse and eligible dependents) shall be entitled
to receive all benefits of employment generally available to other members of
Company's management and those benefits for which key executives are or shall
become eligible, when and as Executive becomes eligible therefore, including,
without limitation, group health, life and disability insurance benefits and
participation in Company's 401(k) plan. Company further agrees to furnish
Executive with such assistance and accommodations (i.e., an office in the size,
type and quality as provided to Executive prior to the Effective Date) as shall
be suitable to the character of Executive's position with Company and adequate
for the performance of Executive's duties hereunder.
5.2 Benefits Payable Upon Disability or Death. If
Executive shall be prevented during the term of this Agreement from properly
performing services hereunder by
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reason of illness or other physical or mental incapacity ("DISABILITIES"),
Company shall continue to pay Executive the then current salary hereunder for a
period of twelve (12) months, following the onset of such disability. In the
event of the death of Executive during the term of this Agreement, Executive's
then current salary payable hereunder shall continue to be paid, as a death
benefit, to Executive's surviving spouse, or if there is no spouse surviving,
then to Executive's personal representative (as the case may be) for a period of
twelve (12) months following Executive's death.
6. Business Expenses. Executive will be reimbursed for all
reasonable, out-of-pocket business expenses incurred in the performance of
Executive's duties on behalf of Company. To obtain reimbursement, expenses must
be submitted promptly with appropriate supporting documentation in accordance
with Company's policies.
7. Termination of Executive's Employment.
7.1 Termination for Cause by Company. The Board may
terminate Executive's employment immediately at any time for Cause by delivering
written notice specifying the cause to Executive; provided, however, that such
written notice shall not be delivered until after the Board shall have given
Executive written notice specifying the conduct alleged to have constituted such
cause, and Executive has failed to cure such conduct within thirty (30) days
following receipt of such notice. For purposes of this Agreement, "CAUSE" is
defined as: (a) theft, dishonesty, or intentional falsification of any
employment or Company records; improper disclosure of Company's confidential or
proprietary information; (b) Executive's conviction (including any plea of
guilty or nolo contendere) for any criminal act that materially impairs his
ability to perform his duties for Company; or (c) a material breach of this
Agreement by Executive which is not cured within thirty (30) days of receipt by
Executive of reasonably detailed written notice from Company. In the event
Executive's employment is terminated in accordance with this Section 7.1,
Executive shall be entitled to receive only unpaid Base Salary then in effect,
prorated to the date of termination, together with any amounts to which
Executive is entitled pursuant to Sections 5 or 6 hereof. All other Company
obligations to Executive pursuant to this Agreement will become automatically
terminated and completely extinguished. Executive will not be entitled to
receive the Severance Payments described in Section 7.2, below.
7.2 Termination Without Cause by Company/Severance.
Company may terminate Executive's employment under this Agreement without Cause
at any time on sixty (60) days' advance written notice to Executive. In the
event of such termination, Executive will receive in one lump sum payment (i)
the unpaid Base Salary then in effect, prorated to the effective date of
termination; (ii) his Base Salary for thirty-six (36) months from the
termination date; and (iii) any amounts to which Executive is entitled pursuant
to Sections 5 or 6 hereof (the "SEVERANCE PAYMENTS"), provided that Executive:
(a) complies with all surviving provisions of this Agreement, including without
limitation those provisions specified in Section 14.8, below; and (b) executes a
full general release, releasing all claims, known or unknown, that Executive may
have against Company arising out of or any way related to Executive's employment
or termination of employment with Company, in substantially the form attached
hereto as Exhibit A, or in another form that is acceptable to Company in its
sole discretion. All other Company obligations to Executive will be
automatically terminated and completely extinguished upon termination of
employment.
7.3 Termination for Good Reason by Executive/Severance.
Executive may terminate Executive's employment under this Agreement for Good
Reason (defined below) at
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any time on five (5) days' advance written notice to Company. In the event of
such termination, Executive will be entitled to receive the Severance Payments
described in Section 7.2, above, provided that Executive complies with the
conditions to receiving the Severance Payments described in Section 7.2(a) -
7.2(b), above. All other Company obligations to Executive will be automatically
terminated and completely extinguished upon termination of employment.
For purposes of this Agreement, "GOOD REASON" is defined as
the occurrence of any of the following conditions:
(a) a material, adverse change in Executive's
responsibilities or duties, causing Executive's position to be of materially
less stature or responsibility; provided, that for purposes of this Agreement
and without limiting the generality of the foregoing, a material, adverse change
shall be deemed to occur if Executive no longer serves as Chairman and CEO of a
publicly-traded company;
(b) the relocation of Executive's work place for Company
over Executive's written objection to a location more than thirty (30) miles
from Scottsdale, Arizona;
(c) a failure to pay, or any reduction of Executive's
Base Salary or Executive's Bonus without Executive's written consent (subject to
applicable performance requirements with respect to the actual amount of Bonus
earned by Executive); or
(d) any material breach of this Agreement by Company that
is not cured within thirty (30) days of Company's receipt of written notice from
Executive specifying the material breach of this Agreement.
7.4 Voluntary Resignation by Executive. Executive may
voluntarily resign Executive's position with Company for any reason, at any time
after the Effective Date, on five (5) days' advance written notice. In the event
of Executive's resignation, Executive will be entitled to receive only the Base
Salary for the five-day notice period and no other amount for the remaining
Employment Term (other than amounts to which Executive is entitled pursuant to
Section 5 or 6 hereof). All other Company obligations to Executive pursuant to
this Agreement will become automatically terminated and completely extinguished
upon termination of employment. In addition, Executive will not be entitled to
receive any Severance Payments described in Section 7.2, above. The provisions
of this Section 7.4 shall not apply to Executive's resignation for Good Reason.
7.5 Federal Excise Tax Under Section 4999 of the Code.
(a) Additional Payment. In the event that any payment or
benefit received or to be received by Executive pursuant to this Agreement or
otherwise payable to Executive (collectively, the "PAYMENTS") would be subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended (the "CODE"), or any similar or successor provision (the "EXCISE
TAX"), Company shall pay to Executive within ninety (90) days of the date
Executive becomes subject to the Excise Tax, an additional amount (the "GROSS-UP
PAYMENT") such that the net amount retained by Executive from the Payments and
the Gross-Up Payment, after deduction of (1) any Excise Tax on the Payments and
(2) any federal, state and local income or employment tax and Excise Tax upon
the payment provided for by this Section, shall be equal to the Payments.
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(b) Determination of Excise Tax. For purposes of
determining whether any of the Payments will be subject to the Excise Tax and
the amount of such Excise Tax:
(i) Any payments or benefits received or to be
received by Executive in connection with transactions contemplated by a Change
of Control (as defined below) event or Executive's termination of employment
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with Company), shall be treated as "parachute payments" within the
meaning of Section 280G of the Code or any similar or successor provision, and
all "excess parachute payments" within the meaning of Section 280G of the Code
or any similar or successor provision shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel ("TAX COUNSEL") selected by Company
and reasonably acceptable to Executive such payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G of the Code (or any similar or
successor provision of the Code) in excess of the base amount within the meaning
of Section 280G of the Code (or any similar or successor provision of the Code),
or are otherwise not subject to the Excise Tax.
(ii) The amount of the Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (i) the
total amount of the Payments or (ii) the amount of the excess parachute payments
within the meaning of Section 280G of the Code (after applying paragraph (b)(1)
above).
(iii) The value of any non-cash benefits or any
deferred payment or benefit shall be determined by Tax Counsel in accordance
with the principles of Section 280G of the Code.
(iv) Change of Control. A "CHANGE OF CONTROL" is
defined as any one of the following occurrences:
a) Any "person" (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"EXCHANGE ACT")), other than a trustee or other fiduciary holding securities of
Company under an employee benefit plan of Company, becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of the securities of Company representing 50% or more of (A) the
outstanding shares of common stock of Company or (B) the combined voting power
of Company's then-outstanding securities; or
b) the sale or disposition of all or
substantially all of Company's assets (or any transaction having similar effect
is consummated); or
c) Company is party to a merger or
consolidation that results in the holders of voting securities of Company
outstanding immediately prior thereto failing to continue to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) at least 50% of the combined voting power of the voting
securities of Company or such surviving entity outstanding immediately after
such merger or consolidation; or
d) a liquidation or dissolution of
Company.
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(c) Determination of Gross-Up Payment. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of Executive's residence on the date the Gross-Up Payment is to be
made, net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.
(d) Adjustments.
(i) In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder,
Executive shall repay to Company at the time that the amount of such reduction
in Excise Tax is finally determined the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by Executive if
such repayment results in a reduction in Excise Tax and/or a federal, state or
local income or employment tax deduction) plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the Code.
(ii) In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), Company shall make an additional gross-up
payment in respect of such excess (plus any interest payable with respect to
such excess) at the time that the amount of such excess is finally determined.
7.6 Termination for Death or Permanent Disability. Upon
Executive's death or permanent disability (a disability which has continued for
a period of twelve (12) months from the date of onset of such disability), this
Agreement shall terminate; provided that Executive and Executive's spouse (or
surviving spouse, as the case may be) and eligible dependents shall be entitled
to continuation rights under Company's group health plans as required under
COBRA, with the "qualifying event" occurring and minimum required period of
coverage to commence upon the termination of this Agreement; and provided
further that, in the event of Executive's death, Executive's surviving spouse or
personal representative, as the case may be, shall be entitled to the death
benefits described in Section 5.2.
8. No Conflict of Interest. During the term of Executive's
employment with Company, Executive must not engage in any work, paid or unpaid,
that creates an actual or potential conflict of interest with Company. If the
Board reasonably believes such a conflict exists during the term of this
Agreement, the Board may ask Executive to choose to discontinue the other work
or resign employment with Company.
9. Post-Termination Non-Competition.
9.1 Consideration For Promise To Refrain From Competing.
Executive agrees that Executive's services are special and unique, that
Company's disclosure of confidential, proprietary information and specialized
training and knowledge to Executive, and that Executive's level of compensation
and benefits, including, without limitation, the severance payments provided for
in this Agreement, are partly in consideration of and conditioned upon Executive
not competing with Company. Executive acknowledges that such consideration is
adequate for Executive's promises contained within this Section 9.
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9.2 Promise To Refrain From Competing. Executive
understands Company's need for Executive's promise not to compete with Company
is based on the following: (a) Company has expended, and will continue to
expend, substantial time, money and effort in developing its proprietary
information; (b) Executive will in the course of Executive's employment develop,
be personally entrusted with and exposed to Company's proprietary information;
(c) both during and after the term of Executive's employment, Company will be
engaged in the highly competitive enterprise software industry; (d) Company
provides products and services nationally and internationally; and (e) Company
will suffer great loss and irreparable harm if Executive were to enter into
competition with Company. Therefore, in exchange for the consideration described
in Section 9.1 above, Executive agrees that for the period of three (3) years
following the date Executive ceases to render services to Company (the "COVENANT
PERIOD"), Executive will not either directly or indirectly, whether as an owner,
director, officer, manager, consultant, agent or employee: (i) work for a
competitor of Company, which is defined to include those entities or persons in
the business of developing, marketing, selling and supporting software designed
for businesses in the retail and consumer packaged goods markets or in the
business of helping companies synchronize their inventory decisions with
advanced supply chain, inventory management and data mining solutions, in any
country in which Company does business (the "RESTRICTED BUSINESS"); or (ii) make
or hold any investment in any Restricted Business, whether such investment be by
way of loan, purchase of stock or otherwise, provided that there shall be
excluded from the foregoing the ownership of not more than 5% of the listed or
traded stock of any publicly held corporation. For purposes of this Section 9,
the term "COMPANY" shall mean and include Company, any subsidiary or affiliate
of Company, any successor to the business of Company (by merger, consolidation,
sale of assets or stock or otherwise) and any other corporation or entity of
which Executive may serve as a director, officer or employee at the request of
Company or any successor of Company.
9.3 Reasonableness of Restrictions. Executive represents
and agrees that the restrictions on competition, as to time, geographic area,
and scope of activity, required by this Section 9 are reasonable, do not impose
a greater restraint than is necessary to protect the goodwill and business
interests of Company, and are not unduly burdensome to Executive. Executive
expressly acknowledges that Company competes on an international basis and that
the geographical scope of these limitations is reasonable and necessary for the
protection of Company's trade secrets and other confidential and proprietary
information. Executive further agrees that these restrictions allow Executive an
adequate number and variety of employment alternatives, based on Executive's
varied skills and abilities. Executive represents that Executive is willing and
able to compete in other employment not prohibited by this Agreement.
9.4 Reformation if Necessary. In the event a court of
competent jurisdiction determines that the geographic area, duration, or scope
of activity of any restriction under this Section 9 and its subsections is
unenforceable, the restrictions under this section and its subsections shall not
be terminated but shall be reformed and modified to the extent required to
render them valid and enforceable. Executive further agrees that the court may
reform this Agreement to extend the Covenant Period by an amount of time equal
to any period in which Executive is in breach of this covenant.
10. Confidentiality. Executive agrees to abide by Company's letter
agreement dated as of January 1, 1998, which is incorporated by this reference
whereby Executive covenants and agrees to keep confidential that information
known by or made available to Executive on account of his relationship with
Company (the "LETTER AGREEMENT").
11. Nonsolicitation.
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11.1 Nonsolicitation of Customers or Prospects. Executive
acknowledges that information about Company's customers is confidential and
constitutes trade secrets. Accordingly, Executive agrees that during the term of
this Agreement and for a period of two (2) years after the termination of this
Agreement, Executive will not, either directly or indirectly, separately or in
association with others, interfere with, impair, disrupt or damage Company's
relationship with any of its customers or customer prospects by soliciting or
encouraging others to solicit any of them for the purpose of diverting or taking
away business from Company.
11.2 Nonsolicitation of Company's Employees. Executive
agrees that during the term of this Agreement and for a period of three (3)
years after the termination of this Agreement, Executive will not, either
directly or indirectly, separately or in association with others, interfere
with, impair, disrupt or damage Company's business by soliciting, encouraging,
hiring or attempting to hire any of Company's employees or causing others to
solicit or encourage any of Company's employees to discontinue their employment
with Company. Notwithstanding the previous sentence, the Executive may give
references for employees and tell headhunters the names of employees of Company,
in either event, where the Executive is aware that the employee has been
identified by Company as not being part of its long-term plans after a Change of
Control.
12. Injunctive Relief. Executive acknowledges that Executive's
breach of the covenants contained in Sections 9-11 (collectively "COVENANTS")
would cause irreparable injury to Company and agrees that in the event of any
such breach, Company shall be entitled to seek temporary, preliminary and
permanent injunctive relief without the necessity of proving actual damages or
posting any bond or other security.
13. Agreement to Arbitrate. To the fullest extent permitted by
law, Executive and Company agree to arbitrate any controversy, claim or dispute
between them arising out of or in any way related to this Agreement, the
employment relationship between Company and Executive and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. Claims for
breach of Company's Employee Innovations and Proprietary Rights Agreement,
workers' compensation, unemployment insurance benefits and Company's right to
obtain injunctive relief pursuant to Section 12 above are excluded. For the
purpose of this agreement to arbitrate, references to "Company" include all
parent, subsidiary or related entities and their employees, supervisors,
officers, directors, agents, pension or benefit plans, pension or benefit plan
sponsors, fiduciaries, administrators, affiliates and all successors and assigns
of any of them, and this Agreement shall apply to them to the extent Executive's
claims arise out of or relate to their actions on behalf of Company.
13.1 Initiation of Arbitration. Either party may exercise
the right to arbitrate by providing the other party with written notice of any
and all claims forming the basis of such right in sufficient detail to inform
the other party of the substance of such claims. In no event shall the request
for arbitration be made after the date when institution of legal or equitable
proceedings based on such claims would be barred by the applicable statute of
limitations.
13.2 Arbitration Procedure. The arbitration will be
conducted in Maricopa county, Arizona, by a single neutral arbitrator and in
accordance with the then current rules for resolution of employment disputes of
the American Arbitration Association ("AAA"). The parties
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are entitled to representation by an attorney or other representative of their
choosing. The arbitrator shall have the power to enter any award that could be
entered by a judge of the trial court of the State of Arizona, and only such
power, and shall follow the law. The parties agree to abide by and perform any
award rendered by the arbitrator. Judgment on the award may be entered in any
court having jurisdiction thereof.
13.3 Costs of Arbitration. Each party shall bear one half
the cost of the arbitration filing and hearing fees, and the cost of the
arbitrator.
14. General Provisions.
14.1 Successors and Assigns. The rights and obligations of
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of Company. Executive shall not be entitled to
assign any of Executive's rights or obligations under this Agreement.
14.2 Waiver. Either party's failure to enforce any
provision of this Agreement shall not in any way be construed as a waiver of any
such provision, or prevent that party thereafter from enforcing each and every
other provision of this Agreement.
14.3 Attorneys' Fees. In any dispute relating to this
Agreement, the losing party shall pay the attorneys' fees of the prevailing
party in addition to its own attorneys' fees.
14.4 Severability. In the event any provision of this
Agreement is found to be unenforceable by an arbitrator or court of competent
jurisdiction, such provision shall be deemed modified to the extent necessary to
allow enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
14.5 Interpretation; Construction. The headings set forth
in this Agreement are for convenience only and shall not be used in interpreting
this Agreement. This Agreement has been drafted by legal counsel representing
Company, but Executive has participated in the negotiation of its terms.
Furthermore, Executive acknowledges that Executive has had an opportunity to
review and revise the Agreement and have it reviewed by legal counsel, if
desired, and, therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
14.6 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the United States and the State of
Arizona. Each party consents to the jurisdiction and venue of the state or
federal courts in Maricopa county, Arizona, if applicable, in any action, suit,
or proceeding arising out of or relating to this Agreement.
14.7 Notices. Any notice required or permitted by this
Agreement shall be in writing and shall be delivered as follows with notice
deemed given as indicated: (a) by personal delivery when delivered personally;
(b) by overnight courier upon written verification of receipt; (c) by telecopy
or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of
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receipt. Notice shall be sent to the addresses set forth below, or such other
address as either party may specify in writing.
14.8 Survival. Sections 8 ("No Conflict of Interest"), 9
("Post-Termination Non-Competition"), 10 ("Confidentiality and Proprietary
Rights"), 11 ("Nonsolicitation"), 12 ("Injunctive Relief"), 13 ("Agreement to
Arbitrate"), 14 ("General Provisions") and 15 ("Entire Agreement") of this
Agreement shall survive Executive's employment by Company.
15. Entire Agreement. This Agreement, including the Letter
Agreement incorporated herein by reference, constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
simultaneous representations, discussions, negotiations, and agreements, whether
written or oral. This Agreement may be amended or modified only with the written
consent of Executive and the Board. No oral waiver, amendment or modification
will be effective under any circumstances whatsoever.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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[SIGNATURE PAGE TO XXXXXXXXX EMPLOYMENT AGREEMENT]
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
EXECUTIVE
Dated: 7-23-02 /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
XXXXX X. XXXXXXXXX
ADDRESS _______________________________
_______________________________________
_______________________________________
COMPANY
Dated: 7-23-02 By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: _________________________________
Title: ________________________________
[SIGNATURE PAGE TO XXXXXXXXX EMPLOYMENT AGREEMENT]
EXHIBIT A
Form of Mutual Release
See attached.
JDA SOFTWARE GROUP, INC.
AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
OF XXXXX X. XXXXXXXXX
This Amendment No. 1 (this "AMENDMENT") to Xxxxx X. Xxxxxxxxx'x
Executive Employment Agreement entered into on July 23, 2002 (the "ORIGINAL
EMPLOYMENT AGREEMENT") is effective as of August 1, 2003, by and between JDA
Software Group, Inc. (the "COMPANY") and Xxxxx X. Xxxxxxxxx (the "EXECUTIVE").
RECITALS
WHEREAS, on July 23, 2002, Executive and the Company entered into the
Original Employment Agreement.
WHEREAS, on August 1, 2003, Executive resigned as Chief Executive
Officer ("CEO") of the Company.
WHEREAS, Section 15 of the Original Employment Agreement vests
Executive and the Company's Board of Directors (the "BOARD") with the power to,
among other things, amend the Original Employment Agreement.
WHEREAS, the Board accepted Executive's resignation and approved this
Amendment effective as of the date hereof.
WHEREAS, Executive and the Company desire to amend the Original
Employment Agreement in accordance with Section 15 thereof as hereafter set
forth.
AMENDMENT TO THE ORIGINAL EMPLOYMENT AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 2.1 of the Original Employment Agreement is hereby
amended and restated to read in its entirety as follows:
2.1 Position. Executive is employed as Chairman of the
Board of Directors ("CHAIRMAN") of Company. Executive shall perform
faithfully and diligently all duties assigned to Executive. The Board
of Directors of Company ("BOARD") reserves the right to modify
Executive's position and duties at any time in its sole and absolute
discretion, provided that the duties assigned are consistent with the
position of Chairman.
2. Section 2.2 of the Original Employment Agreement is hereby
amended and restated to read in its entirety as follows:
2.2 Standard of Conduct/Full-time. During the term of
this Agreement, Executive will act loyally and in good faith to
discharge the duties of Chairman, and will abide by all policies and
decisions made by Company, as well as all applicable federal, state and
local laws, regulations or ordinances. Executive will act solely on
behalf of Company at all times. Executive shall devote Executive's full
business time and efforts to the performance of Executive's assigned
duties for Company, unless Executive notifies the Board in advance of
Executive's intent to engage in other paid work and receives the
Board's express written consent to do so.
3. Section 4.1 of the Original Employment Agreement is hereby
amended and restated to read in its entirety as follows:
4.1 Base Salary. As compensation for Executive's
performance of Executive's duties hereunder, Company shall pay to
Executive a salary of $250,000 per year, payable in equal semi-monthly
installments and in accordance with the normal payroll practices of
Company, less required deductions for state and federal withholding
tax, social security and all other employment taxes and authorized
payroll deductions. Executive's Base Salary will be reviewed by the
parties on or before each anniversary of the Effective Date and may be
increased or decreased from time to time during the Employment Term by
such amount(s) as Company and Executive may agree to in writing.
4. Section 4.2 of the Original Employment Agreement is hereby
amended and restated in its entirety as follows:
4.2 Incentive Compensation. Executive will not be
eligible to receive cash bonus incentive compensation. Executive may be
eligible to receive non-cash incentive compensation in the form of
option grants, subject to the terms and conditions as the Board may
from time to time deem appropriate in its sole and absolute discretion.
5. Subparagraphs (a) and (b) of Section 7.2 of the Original
Employment Agreement are hereby amended and restated to read in their entirety
as follows:
(a) a material, adverse change in Executive's
responsibilities or duties, causing Executive's position to be of
materially less stature or responsibility; provided, that for purposes
of this Agreement and without limiting the generality of the foregoing,
a material, adverse change shall be deemed to occur if Executive no
longer serves as Chairman of a publicly-traded company;
(b) failure to pay, or any reduction of Executive's Base
Salary without Executive's written consent; or
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6. Miscellaneous.
(a) Except as expressly amended as provided above, the
Original Employment Agreement remains unmodified and in full force and effect
and is hereby renewed, ratified and affirmed by the Company and Executive.
(b) This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original. Any party may execute
this Amendment by facsimile signature, which shall be deemed to constitute an
original for all purposes.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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THE PARTIES TO THIS AMENDMENT HAVE READ THE FOREGOING AMENDMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AMENDMENT ON THE DATE(S) SHOWN BELOW.
EXECUTIVE
Dated: 8-1-03 /s/ XXXXX X. XXXXXXXXX
-----------------------------------
XXXXX X. XXXXXXXXX
Address____________________________
___________________________________
___________________________________
COMPANY
JDA SOFTWARE GROUP, INC.
Dated: 8-1-03 By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title : CHIEF EXECUTIVE OFFICER
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO EXECUTE EMPLOYMENT AGREEMENT OF
XXXXX X. XXXXXXXXX]
