AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.5
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement (“Agreement”) is dated September 8,
2009 (“Effective Date”), by and between JDA Software Group, Inc., a Delaware corporation
(“Company”) and Hamish X. Xxxxxx (“Executive”) (either party individually, a “Party”; collectively,
the “Parties”).
WHEREAS, Company desires to retain the services of Executive as President and Chief Executive
Officer;
WHEREAS, the Parties desire to supersede and replace in its entirety Executive’s prior
Executive Employment Agreement, dated January 22, 2003, with this Agreement;
WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions
of Executive’s employment by Company and to address certain matters related to Executive’s
employment with Company;
NOW, THEREFORE, in consideration of the foregoing and the mutual provisions contained herein,
and for other good and valuable consideration, the Parties hereto agree as follows:
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 President and Chief Executive Officer and shall
have the duties and responsibilities assigned by Company’s Board of Directors (“Board”) as may be
reasonably assigned from time to time. Executive shall perform faithfully and diligently all duties
assigned to Executive. Company 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 President and Chief Executive Officer and that Executive continues to report directly
to the Board.
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 President and Chief Executive Officer, 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 shall devote Executive’s full business time
and efforts to the performance of Executive’s assigned duties for Company and may not engage in
other paid service 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. At-Will Employment. Executive’s employment with the Company is at-will and not for
any specified period and may be terminated at any time, with or without cause (as defined below) or
advance notice, by either Executive or the Company subject to the provisions regarding termination
set forth below in Section 7. Any change to the at-will employment relationship must be by
specific, written agreement signed by Executive and the Company, and must be approved by the
Company’s Board of Directors. Nothing in this Agreement is intended to or should be construed to
contradict, modify or alter this at-will relationship.
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 $500,000 per year, payable in equal 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.
4.2 Equity. Subject to approval by Company’s Board of Directors (the “Board”), Company
will from time to time grant to Executive various forms of equity awards of Company’s common stock
(the “Equity Awards”). The Equity Awards will be subject to the terms and conditions of Company’s
2005 Performance Incentive Plan, or any other subsequent employee equity plan approved in the
future by the Board and the Company’s shareholders, as designated by the Board (the “Plan”). The
Equity Awards will also be subject to the terms and conditions contained in the applicable forms of
award agreement adopted by the Board and certain vesting acceleration provisions described in this
Agreement.
4.3 Incentive Compensation. In addition, Executive will also be eligible to receive
incentive compensation subject to the terms and conditions contained in the Executive Bonus Plan,
which is approved by the Board and is subject to amendment from time to time by the Board in its
sole and absolute discretion (a “Bonus”). Unless otherwise provided herein, the payment of any
Bonus pursuant to this Section 4.3 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.
4.4 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. Customary Fringe Benefits and Facilities. Executive will be entitled to 4 weeks of
paid vacation, and 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.
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. Any reimbursement Executive is entitled to receive shall (a)
be paid no later than the last day of Executive’s tax year following the tax year in which the
expense was incurred, (b) not be affected by any other expenses that are eligible for reimbursement
in any tax year and (c) not be subject to liquidation or exchange for another benefit.
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7. Termination of Executive’s Employment.
7.1 Termination for Cause or upon Death. Company may terminate Executive’s employment
immediately at any time for Cause. For purposes of this Agreement, “Cause” is defined as: (a)
theft or material dishonesty relating to the Company or its business, intentional falsification of
any employment or Company records; or 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; (c) willful
misconduct or breach of fiduciary duty for personal profit by Executive, (d) Executive’s material
failure to abide by the Company’s code of conduct or code of ethics policies resulting in
demonstrable injury to the Company or its reputation, or (e) 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. Executive’s employment shall terminate upon his death. In the event
Executive’s employment is terminated for Cause or upon his death, Executive (or his estate or
designated beneficiaries) shall be entitled to receive only unpaid Base Salary then in effect,
prorated to the date of termination, together with any amounts or benefits due upon termination
pursuant to the plans or policies described in Section 5, and for reimbursement of business
expenses incurred prior to termination to the extent provided in Section 6. Notwithstanding the
foregoing, in the event Executive’s employment is terminated due to death arising or occurring, in
the reasonable judgment of the Board or its Compensation Committee in the course of performance by
Executive of his duties hereunder, the Company shall cause the immediate acceleration of the
vesting of all Executive’s outstanding earned-but-unvested Equity Awards (as described in Section
7.2 below). Except as set forth above, upon termination for Cause or death, all other Company
obligations to Executive pursuant to this Agreement will become automatically terminated and
completely extinguished. For purposes of clarity, except as specifically set forth in this Section
7.1, Executive will not be entitled to receive the Severance Benefits described in Section 7.2
below.
7.2 Termination Without Cause by Company. Company may terminate Executive’s employment
under this Agreement without Cause at any time on sixty (60) days’ advance written notice to
Executive. Upon termination without Cause, Executive will receive the unpaid Base Salary then in
effect, prorated to the effective date of termination (the “Termination Date”), together with any
amounts or benefits due upon termination pursuant to the plans or policies described in Section 5,
and for reimbursement of business expenses incurred prior to termination to the extent provided in
Section 6. In addition, the Company shall (X) pay a lump sum on the forty-fifth (45th)
day following such termination in an amount equal to (i) his Base Salary for twenty-four (24)
months from the Termination Date, plus (ii) one year’s target Bonus pursuant Section 4.3 of this
Agreement for the calendar year during which the termination occurs, calculated based on the Bonus
that would be paid to Executive if he had not been terminated and if all performance based
milestones were achieved at the 100% level by both Company and the Executive, such Bonus to be,
solely for the purpose of defining Severance Benefits, not less than $600,000, plus (iii) any
unpaid Bonus earned in the year of termination, but not paid as of termination, (Y) cause the
immediate acceleration of the vesting of all of Executive’s outstanding earned-but-unvested Equity
Awards; and (Z) in the event that Executive timely elects to obtain continued group health
insurance coverage for himself and his family under COBRA following termination of employment under
this Section 7.2, pay the premiums for such coverage through the earlier of (i) the date that is
eighteen (18) months following the Termination Date, or (ii) the first date on which Executive
becomes eligible for other group health insurance coverage pursuant to Executive’s subsequent
employment (such amounts, accelerated vesting and insurance coverage, together with any amounts to
which Executive is entitled pursuant to Sections 5 or 6 hereof as of the Termination Date, shall be
referred to herein as the “Severance Benefits”), provided that (A) Executive executes a full
general release (which shall contain a cross release of the Company), releasing all claims, known
or unknown, that Executive may have against Company arising out of or any way related to this
Agreement or Executive’s employment or termination of employment with Company and such release has
become effective in accordance with its terms prior to
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the forty-fifth (45th) day following such termination, in substantially the form
attached hereto as Exhibit A, or in another form that is acceptable to Company in its sole
discretion, and (B) the Severance Benefits shall be subject to Section 7.7 below. For purposes of
this agreement, an “earned-but-unvested Equity Award” means an Equity Award or any portion thereof
that remains subject to a substantial risk of forfeiture until both (i) one or more applicable
corporate financial or other business performance goals have been satisfied and (ii) Executive’s
service with the Company has continued through a specified date, and with respect to such Equity
Award the condition specified in clause (i) of this sentence has been satisfied but the condition
specified in clause (ii) of this sentence has not been satisfied. 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. Executive may terminate Executive’s
employment under this Agreement for Good Reason at any time on five (5) days’ advance written
notice to Company given within one hundred eighty (180) days following the initial existence of a
condition constituting Good Reason. In the event of termination for Good Reason, Executive will
receive the unpaid Base Salary then in effect, prorated to the effective date of termination. In
addition, Executive will be entitled to receive the Severance Benefits described in Section 7.2,
above, provided that Executive complies with the conditions to receiving the Severance Benefits
described in Sections 7.2(A) and 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 and continuation of any
of the following conditions, provided that Executive has delivered written notice to the Company of
such condition within ninety (90) days after its initial existence and the Company has failed to
cure such condition within thirty (30) days following such written notice:
(a) a material, adverse change in Executive’s authority, responsibilities or duties; 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 President and
Chief Executive Officer (who shall be the most senior executive) of a publicly-traded company
reporting directly to the Board;
(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 material 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 Termination upon Disability. Executive’s employment will be terminated upon
Disability, unless otherwise agreed upon in writing by the Company within 15 days of such
determination. Upon termination for Disability Executive will be entitled to receive the Severance
Benefits described in Section 7.2, above, provided that Executive complies with the conditions to
receiving the Severance Benefits described in Sections 7.2(A) and 7.2(B) above and provided further
that the lump sum amount due under Section 7.2 (X) upon Disability shall be reduced by payments
received or receivable under a disability plan sponsored by the Company that covers a substantial
number of employees and that was established before Executive became disabled. All other Company
obligations to
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Executive will be automatically terminated and completely extinguished upon termination of
employment.
For purposes of this Agreement, “Disability” shall have the meaning assigned to it in the group
long term disability insurance policy maintained by the Company for the benefit of its employees.
In the absence of such a policy, “Disability” means that, as a result of Executive’s mental or
physical illness or injury, Executive is unable to perform (with or without reasonable
accommodation in accordance with the Americans with Disabilities Act) the duties of Executive’s
position pursuant to this Agreement for a continuous period of three (3) months.
7.5 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 up through the end of the five-day notice period, together with any
amounts or benefits due upon termination to which Executive is entitled pursuant to Section 5, and
for reimbursement of business expenses incurred prior to termination to the extent provided in
Section 6. All other Company obligations to Executive pursuant to this Agreement will become
automatically terminated and completely extinguished upon termination of employment. For purposes
of clarity, except as specifically set forth herein; Executive will not be entitled to receive any
Severance Benefits described in Section 7.2 above. The provisions of this Section 7.5 shall not
apply to Executive’s resignation for Good Reason.
7.6 Mandatory Reduction of Payments in Certain Events.
(a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company to or for the benefit of Executive
(whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or
otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code (the “Excise Tax”), then, prior to the making of any Payment to Executive, a
calculation shall be made comparing (i) the net benefit to Executive of the Payment after payment
of the Excise Tax, to (ii) the net benefit to Executive if the Payment had been limited to the
extent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i)
above is less than the amount calculated under (ii) above, then the Payment shall be limited to the
extent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). The reduction of
the Payments due hereunder, if applicable, shall be made in such a manner as to maximize the
economic present value of all Payments actually made to Executive, determined by the Determination
Firm as defined in Section 14.2 below.
(b) The determination of whether an Excise Tax would be imposed, the amount of such Excise
Tax, and the calculation of the amounts referred to Section 14.1(i) and (ii) above shall be made by
an independent, nationally recognized accounting firm or compensation consulting firm mutually
acceptable to the Company and Executive (the “Determination Firm”) which shall provide detailed
supporting calculations. Any determination by the Determination Firm shall be paid for by the
Company and shall be binding upon the Company and Executive.
(c) In the event that the provisions of Internal Revenue Code Section 280G and 4999 or any
successor provisions are repealed without succession, this Section 14 shall be of no further force
or effect.
7.7 Forfeiture of Severance Benefits. The right of Executive to receive or to retain
Severance Benefits pursuant to Section 7.2 or Section 7.3 shall be subject to Executive’s continued
compliance with the Covenants (as defined in Section 12). In the event that Executive breaches any
of the Covenants, the Company shall have the right to (a) terminate any further provision of
Severance
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Benefits not yet paid or provided, (b) seek reimbursement from Executive for any and all such
Severance Benefits previously paid or provided to Executive, (c) recover from Executive all shares
of stock of the Company the vesting of which was accelerated by reason of the Severance Benefits
(or the proceeds therefrom, reduced by any exercise or purchase price paid to acquire such shares),
and (d) immediately cancel all Equity Awards the vesting of which was accelerated by reason of the
Severance Benefits.
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 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.
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 retail
demand chain 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 nine (9) months 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 specifically
designed for businesses in the retail and consumer packaged goods markets in any country in which
Company does business (the “Restricted Business”) or (ii) make or hold during the Covenant Period
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 1% 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. For the avoidance of
doubt, Restricted Business shall not include a company that develops, markets, sells or supports
software that applies to a variety of vertical markets (“Cross Vertical Solutions”) where the
company may have customized its Cross Vertical Solutions for the retail and consumer packaged goods
markets, but does not have software that is primarily targeted to the retail and consumer packaged
goods markets.
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
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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 and Proprietary Rights. Executive agrees to read, sign and abide
by Company’s Employee Innovations and Proprietary Rights Assignment Agreement, which was previously
executed by Executive and incorporated herein by reference.
11. Nonsolicitation.
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 the Covenant Period, 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 the Covenant Period, 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.
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, in addition to the action it is
authorized to take pursuant to Section 7.7, 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 Mediate and Arbitrate. In the event a dispute arises in connection
with this Agreement, the Company and Executive agree to submit the dispute to non-binding
mediation, with the mediator to be selected and compensated by the Company. In the event a
resolution is not reached through mediation, then, 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
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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 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. The Company will reimburse Executive’s legal counsel fees in
connection with the negotiation of this Agreement not to exceed $15,000. Any reimbursement of
attorney’s fees to which Executive is entitled and which are treated for federal income tax
purposes as compensation shall (a) be paid no later than the last day of Executive’s tax year
following the tax year in which the expense was incurred, (b) not be affected by any other expenses
that are eligible for reimbursement in any tax year and (c) not be subject to liquidation or
exchange for another benefit. 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.
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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 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.
14.9 Application of Section 409A.
(a) Notwithstanding anything set forth in this Agreement to the contrary, no amount payable
pursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of the
Treasury Regulations issued pursuant to Section 409A of the Code (the “Section 409A Regulations”)
shall be paid unless and until Executive has incurred a “separation from service” within the
meaning of the Section 409A Regulations. Furthermore, to the extent that Executive is a “specified
employee” within the meaning of the Section 409A Regulations as of the date of Executive’s
separation from service, no amount that constitutes a deferral of compensation within the meaning
of the Section 409A Regulations which is payable on account of Executive’s separation from service
shall paid to Executive before the date (the “Delayed Payment Date”) which is first day of the
seventh month after the date of Executive’s separation from service or, if earlier, the date of
Executive’s death following such separation from service. All such amounts that would, but for
this Section, become payable prior to the Delayed Payment Date will be accumulated and paid on the
Delayed Payment Date.
(b) The Company intends that income provided to Executive pursuant to this Agreement will not
be subject to taxation under Section 409A of the Code. The provisions of this Agreement shall be
interpreted and construed in favor of satisfying any applicable requirements of Section 409A of the
Code. However, the Company does not guarantee any particular tax effect for income provided to
Executive pursuant to this Agreement. In any event, the Company shall indemnify and hold Executive
harmless from and against the payment of any taxes under Section 409A of the Code on compensation
paid or provided to Executive pursuant to this Agreement.
15. Entire Agreement. This Agreement, together with the Plan and any agreement
evidencing an Equity Award described in Section 4.2, the Executive Bonus Plan described in Section
4.3, the
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Employee Innovations and Proprietary Rights Assignment Agreement described in Section 10 and the
Form of Confidential Separation and Release Agreement attached hereto as Exhibit A,
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 of Company. No oral waiver, amendment or modification will be effective
under any circumstances whatsoever.
[The remainder of this page is intentionally left blank.]
-10-
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: |
||||||||||
| HAMISH X. XXXXXX | ||||||||||
| ADDRESS | ||||||||||
| COMPANY | ||||||||||
Dated:
|
By: | |||||||||
| Xxxx Xxxxxx, Chairman of Company Compensation Committee |
[Signature Page to Xxxxxx Amended and Restated Employment Agreement]
EXHIBIT A
FORM OF
CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT
CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT
This Confidential Separation and Release Agreement (“Agreement”) is between
(“Employee”) and JDA Software Group, Inc. (the “Company”) (hereinafter the
“parties”), and is entered into as of
. This Agreement will not become
effective until the expiration of seven (7) days from Employee’s execution of this Agreement (the
“Effective Date”).
WHEREAS, Employee has been employed by the Company as
and is a party to that
certain Employment Agreement dated
, as amended by and between the Company and Employee as
then in effect immediately prior to the Effective Date (the “Employment Agreement”);
WHEREAS, the last day of Employee’s employment with the Company was
; and
WHEREAS, the Company and Employee desire to avoid disputes and/or litigation regarding
Employee’s separation from employment or any events or circumstances preceding or coincident with
Employee’s separation from employment;
NOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth
in this Agreement, Employee’s employment with the Company will terminate upon the following terms:
1. Mutual General Release:
(a) Employee for himself or herself and on behalf of Employee’s attorneys, heirs, assigns,
successors, executors, and administrators IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS AND
FOREVER DISCHARGES the Company and any current or former stockholders, directors, parent,
subsidiary, affiliated, and related corporations, firms, associations, partnerships, and entities,
and their successors and assigns, from any and all claims and causes of action whatsoever, whether
known or unknown or whether connected with Employee’s employment by the Company or not, which may
have arisen, or which may arise, prior to, or at the time of, the execution of this Agreement,
including, but not limited to, any claim or cause of action arising out of any contract, express or
implied, any covenant of good faith and fair dealing, express or implied, any tort (whether
intentional or released in this agreement), or under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities Act, the Worker Adjustment
and Retraining Notification (WARN) Act, the Older Workers Benefit Protection Act, or any other
municipal, local, state, or federal law, common or statutory. The foregoing release shall not apply
to indemnification or hold harmless obligations the Company may have that by their terms survive
the termination of the Employee’s employment with the Company.
(b) The Company for itself and on behalf of its current or former stockholders, directors,
parent, subsidiary, affiliated, and related corporations, firms, associations, partnerships, and
entities, and their successors and assigns IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS AND
FOREVER DISCHARGES, Employee and his personal representatives, administrators, trustees, heirs and
assigns from any and all claims and causes of action whatsoever, whether known or unknown or
whether connected with Employee’s employment by the Company or not, which may have arisen, or which
may arise, prior to or at the time of, the execution of this Agreement, including, but not limited
to, any claim or cause of action arising out of any contract, express or implied, any covenant of
good faith and fair dealing, express or implied, any tort (whether intentional or released in this
agreement), or any other municipal, local, state, or federal law, common or statutory, in each case
to the extent that Employee satisfied the standard of conduct required for indemnification.
2. Covenant Not to Xxx: Employee also COVENANTS NOT TO XXX, OR OTHERWISE PARTICIPATE
IN ANY ACTION OR CLASS ACTION against the Company or any of the released parties based upon any of
the claims released in this Agreement.
3. Severance Terms: Upon the expiration of seven (7) days from Employee’s execution of
this Agreement and provided that this Agreement has become effective in accordance with its terms,
in consideration for the promises, covenants, agreements, and releases set forth herein and in the
Employment Agreement, the Company agrees to pay Employee the Severance Benefits as defined in and
pursuant to the Employment Agreement (the “Severance Benefits”), subject to the provisions for
forfeiture of such Severance Benefits set forth in Section 7.6 of the Employment Agreement.
4. Right to Revoke: Employee may revoke this Agreement by notice to the Company, in
writing, received within seven (7) days of the date of its execution by Employee (the “Revocation
Period”). Employee agrees that Employee will not receive the benefits provided by this Agreement if
Employee revokes this Agreement. Employee also acknowledges and agrees that if the Company has not
received from Employee notice of Employee’s revocation of this Agreement prior to the expiration of
the Revocation Period, Employee will have forever waived Employee’s right to revoke this Agreement,
and this Agreement shall thereafter be enforceable and have full force and effect.
5. Acknowledgement: Employee acknowledges and agrees that: (A) except as to any
Severance Benefits which remain unpaid as of the date of this Agreement, no additional
consideration, including salary, wages, bonuses or Equity Awards as described in the Employment
Agreement, is to be paid to him by the Company in connection with this Agreement; (B) except as
provided by this Agreement, Employee has no contractual right or claim to the Severance Benefits;
and, (C) payments pursuant to this Agreement shall terminate immediately if Employee breaches any
of the provisions of this Agreement.
6. Non-Admissions: Employee acknowledges that by entering into this Agreement, the
Company does not admit, and does specifically deny, any violation of any local, state, or federal
law.
7. Confidentiality: Employee agrees that Employee shall not directly or indirectly
disclose the terms, amount or fact of this Agreement to anyone other than Employee’s immediate
family or counsel, except as such disclosure may be required for accounting or tax reporting
purposes or as otherwise may be required by law.
8. Nondisparagement: Each party agrees that it will not make any statements, written
or verbal, or cause or encourage others to make any statements, written or verbal, that defame,
disparage or in any way criticize the personal or business reputation, practices or conduct of the
other including, in the case of the Company, its employees, directors and stockholders.
9. Acknowledgement of Restrictions; Confidential Information: Employee acknowledges
and agrees that Employee has continuing non-competition, non-solicitation and non-disclosure
obligations under the Employment Agreement and the Employee Innovations and Proprietary Rights
Assignment Agreement between Employee and the Company (the “Proprietary Rights Agreement”).
Employee acknowledges and reaffirms Employee’s obligation to continue abide fully and completely
with all post-employment provisions of the Employment Agreement and the Proprietary Rights
Agreement and agrees that nothing in this Agreement shall operate to excuse or otherwise relieve
Employee of such obligations.
11. Severability: If any provision of this Agreement is held to be illegal, invalid,
or unenforceable, such provision shall be fully severable and/or construed in remaining part to the
full extent allowed by law, with the remaining provisions of this Agreement continuing in full
force and effect.
12. Entire Agreement: This Agreement, along with the Employment Agreement and the
Proprietary Rights Agreement which are referred to above, constitute the entire agreement between
the Employee and the Company, and supersede all prior and contemporaneous negotiations and
agreements, oral or written. This Agreement cannot be changed or terminated except pursuant to a
written agreement executed by the parties.
13. Governing Law: This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona, except where preempted by federal law.
14. Statement of Understanding: By executing this Agreement, Employee acknowledges
that (a) Employee has had at least twenty-one (21) or forty-five (45) days, as applicable in
accordance with the Age Discrimination in Employment Act, as amended, to consider the terms of this
Agreement and has considered its terms for such a period of time or has knowingly and voluntarily
waived Employee’s right to do so by executing this Agreement and returning it to the Company; (b)
Employee has been advised by the Company to consult with an attorney regarding the terms of this
Agreement; (c) Employee has consulted with, or has had sufficient opportunity to consult with, an
attorney of Employee’s own choosing regarding the terms of this Agreement; (d) any and all
questions regarding the terms of this Agreement have been asked and answered to Employee’s complete
satisfaction; (e) Employee has read this Agreement and fully understands its terms and their
import; (f) except as provided by this Agreement, Employee has no contractual right or claim to the
benefits and payments described herein; (g) the consideration provided for herein is good and
valuable; and (h) Employee is entering into this Agreement voluntarily, of Employee’s own free
will, and without any coercion, undue influence, threat, or intimidation of any kind or type
whatsoever.
EXECUTED in ____________________________________, this day of _____________________________________, 20___.
| EMPLOYEE | ||||||
| EXECUTED in ____________________________________, this day of _____________________________________, 20___. | ||||||
| JDA Software Group, Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
