EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("AGREEMENT") is made effective as
of January 22, 2003 ("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;
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
shall have the duties and responsibilities assigned by Company's Chief Executive
Officer ("CEO") both upon initial hire and 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 a senior executive officer
and that Executive continues to report directly to the 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 President, 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 CEO in advance of Executive's intent to engage in other paid work
and receives the CEO'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.
3.1 Initial Term. Unless sooner terminated in accordance
with the terms of this Agreement, the employment relationship pursuant to this
Agreement shall be for an initial term commencing on the Effective Date set
forth above and continuing for three (3) years from the Effective Date or, if
Executive accepts a position of employment with any successor to the business of
Company (by merger, consolidation, sale of assets or stock or otherwise) after a
Change of Control (as defined in Section 7.5(b)(iv)) below) that occurs within
three (3) years of
the Effective Date, the initial term shall continue for eighteen (18) months
from the date of the Change of Control (each, an "INITIAL TERM").
3.2 Renewal. On completion of the Initial Term specified
in Section 3.1 above, this Agreement will automatically renew for subsequent
one-year terms unless either party provides ninety (90) days' advance written
notice to the other that such party does not wish to renew the Agreement for a
subsequent one-year term. In the event either party gives notice of nonrenewal
pursuant to this Section 3.2, this Agreement will expire at the end of the
then-current 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 $250,000 per year, payable in equal bi-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 Stock Options. Subject to approval by Company's Board
of Directors (the "BOARD"), Company will from time to time grant to Executive an
option to purchase shares of Company's common stock (the "OPTION"). The Option
will be subject to the terms and conditions of one of Company's Stock Option
Plans as designated by the Board (the "PLAN"). The Option will also be subject
to the terms and conditions contained in the special form of option agreement
previously adopted by the Board for the Senior Executives, a form of which is
attached hereto as Exhibit A (the "FORM OPTION AGREEMENT") and shall vest over a
period of three (3) years in accordance with the terms of the Form Option
Agreement and the Plan. The Option shall be subject to certain acceleration
provisions described in the Form Option Agreement and 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. 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
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
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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.
7. Termination of Executive's Employment.
7.1 Termination for Cause by Company. Company may
terminate Executive's employment immediately at any time for Cause. 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. Executive
shall be entitled to any benefit or right to which Executive is entitled
pursuant to the Plan, however, there shall be no additional vesting under
Executive's Option. 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 then in
effect; (ii) his Base Salary for twenty-four (24) months from the termination
date plus one year's expected Bonus pursuant to Section 4.3 of this Agreement,
and assuming satisfaction of all performance based milestones by both Company
and the Executive; (iii) any amounts to which Executive is entitled pursuant to
Section 5 or 6 hereof; and (iv) any benefit or right to which Executive is
entitled pursuant to the Plan and Option Agreements delivered to Executive in
connection with the grant of Options to Executive (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 B, 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 any time on five (5) days' advance written notice to
Company. In the event of such termination,
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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 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 of any of the following conditions:
(i) a failure to pay, or any reduction of
Executive's Base Salary as in effect immediately prior to the Change of Control
(as defined in Section 7.5(b)(iv)) or Executive's Bonus in effect prior to the
Change of Control (subject to applicable performance requirements with respect
to the actual amount of Bonus earned by Executive); or
(ii) any material breach of this Agreement by
Company that is not cured within thirty (30) days after 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
months of the current term, whether the Initial Term or a subsequent one-year
term (other than amounts to which Executive is entitled pursuant to Sections 5
or 6 hereof). Executive shall be entitled to any benefit or right to which
Executive is entitled pursuant to the Plan, however, there shall be not
additional vesting under Executive's Option. 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.
(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
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"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.
(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.
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(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 of Employment Upon Nonrenewal. In the
event either party decides not to renew this Agreement for a subsequent one-year
term in accordance with Section 3.2 above, the Agreement will expire,
Executive's employment with Company will terminate and Executive will only be
entitled to (i) Executive's Base Salary paid through the last day of the
then-current term; (ii) any amounts to which Executive is entitled pursuant to
Section 5 or 6 hereof; and (iii) any benefit or right to which Executive is
entitled pursuant to the Plan and Option Agreements delivered to Executive in
connection with the grant of Options to Executive. All other Company obligations
to Executive pursuant to this Agreement will become automatically terminated and
completely extinguished. In addition, Executive will not be entitled to any
Severance Payments described in Section 7.2.
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 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
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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 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 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.
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 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 for a period of nine (9) months 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
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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 nine (9)
months 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.
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 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.
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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. Each side will bear its own
attorneys' fees in any dispute unless a statutory section at issue, if any,
authorizes the award of attorneys' fees to the prevailing party.
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 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.
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15. Entire Agreement. This Agreement, including Company Employee
Innovations and Proprietary Rights Assignment Agreement incorporated herein by
reference and the Form Option Agreement, 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.]
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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: 1-22-03 /s/ Hamish X. Xxxxxx
--------------------------------------
HAMISH X. XXXXXX
00000 X. Xxxx Xxxx Xxx,
Xxxxxxxxxx, XX 00000 XXX
COMPANY
Dated: 1-22-03 By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
XXXXX X. XXXXXXXXX, CEO
[SIGNATURE PAGE TO XXXXXX EMPLOYMENT AGREEMENT]
EXHIBIT A
Form of Option Agreement
See attached.
EXHIBIT B
Form of Mutual Release
See attached.
JDA SOFTWARE GROUP, INC.
AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
OF HAMISH X. XXXXXX
This Amendment No. 1 (this "AMENDMENT") to Hamish X. Xxxxxx'x Executive
Employment Agreement entered into on January 22, 2003 (the "ORIGINAL EMPLOYMENT
AGREEMENT") is effective as of August 1, 2003, by and between JDA Software
Group, Inc. (the "COMPANY") and Hamish X. Xxxxxx (the "EXECUTIVE").
RECITALS
WHEREAS, on January 22, 2003, Executive and the Company entered into
the Original Employment Agreement.
WHEREAS, effective August 1, 2003, Executive was promoted to the office
of 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 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. The first recital of the Original Employment Agreement is
hereby amended and restated to read in its entirety as follows:
WHEREAS, the Company desires to retain the services of
Executive as President and Chief Executive Officer.
2. 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 President and CEO
of the 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 President and CEO.
3. 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 President 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.
4. 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 $350,000 per year, payable in equal bi-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.
5. 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.]
-2-
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/ Hamish X. Xxxxxx
-----------------------------------
HAMISH X. XXXXXX
Address____________________________
___________________________________
___________________________________
COMPANY
JDA SOFTWARE GROUP, INC.
Dated: 8-1-03 By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: XXXXXXX X. XXXXXXXX
Title: EXEC. V.P. & CFO
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT OF
HAMISH X. XXXXXX]
