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Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into and shall
be effective as of July 31, 1999 (the "Effective Date"), by and among JDA
SOFTWARE GROUP, INC., a Delaware corporation ("JDA"), JDA SOFTWARE, INC., an
Arizona corporation and subsidiary of JDA ("Subsidiary"), and XXXXXXXXX X. XXXXX
("Employee").
RECITALS
A. Employee was formerly employed by Subsidiary, in the capacity of
President pursuant to that certain Employment Agreement dated effective as of
March 30, 1995 and First Amendment to Employment Agreement dated January 12,
1996 (collectively, the "Original Agreement").
B. Employee resigned as President of Subsidiary and accepted an
appointment to the newly created office of the Co-Chairman of the Board of
Directors of JDA, effective as of October 11, 1997. Employee subsequently
accepted the position of co-Chief Executive Officer of JDA effective January 5,
1999.
C. Effective July 31, 1999, Employee resigned his position as co-Chief
Executive Officer, and JDA desires to employ Employee and Employee desires to
continue employment with JDA as co-Chairman of the Board on the terms and
conditions set forth below.
D. Employee and JDA desire to amend the terms of Employee's Stock
Option Agreements to reflect Employee's resignation of his position as Co-Chief
Executive Officer.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, the sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. EMPLOYMENT. JDA agrees to employ Employee as Co-Chairman of the
Board of Directors and Employee agrees to accept such employment with JDA on the
terms and subject to the conditions set forth in this Agreement.
2. TERM. The term of this Agreement (the "Employment Term") shall
commence on the Effective Date and continue until terminated as hereafter
provided.
3. COMPENSATION.
a. Base Salary. During the Employment Term, JDA agrees to pay
Employee a salary at the rate of One Hundred Thousand and No/100 Dollars
($100,000.00) per year, payable in equal semi-monthly installments of Four
Thousand One Hundred Sixty-Six and 66/100 Dollars ($4,166.66) each (the "Base
Salary"). Employee's Base Salary will be reviewed by the parties on or before
each anniversary of the Effective Date and may be increased or
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decreased from time to time during the Employment Term by such amount(s) as JDA
and Employee may agree to in writing.
b. Bonus Compensation. In addition to Employee's Base Salary,
JDA may pay to Employee such bonus(es) as the Board of Directors of JDA
("Board"), in its sole and absolute discretion, may from time to time deem
appropriate. Any bonus(es) shall be in such amounts and payable at such times as
the Board, in its sole and absolute discretion, may determine.
c. No Additional Compensation. Employee acknowledges and
agrees that, except as expressly provided in this Section 3 and Sections 5 and 6
below (relating to certain expense reimbursements and employment benefits),
Employee is not entitled to any other or additional compensation or payments as
a result of his employment with JDA.
d. Taxes. All compensation paid to Employee pursuant to this
Agreement shall be subject to customary withholding taxes and other employment
taxes or levies as required with respect to compensation paid by JDA to an
employee.
e. Modification of Stock Option Agreements. In light of
Employee's resignation of his position as Co-Chief Executive Officer. Employee
and JDA agree to amend certain outstanding stock option agreements between
Employee and JDA as follows:
i. January 5, 1999. Those certain stock option
agreements between JDA and Employee dated January 4, 1999 representing incentive
and non-qualified options to purchase an aggregate of 100,000 shares of JDA's
common stock, are hereby amended and modified so that vesting shall cease as of
August 5, 1999, and the Vested Ratio (as defined in such option agreements)
shall be, and shall remain during the remaining term of the option agreements,
equal to seven-twelfths (7/12).
ii. March 4, 1999. Those certain stock option
agreements between JDA and Employee dated March 4, 1999 representing incentive
and non-qualified options to purchase an aggregate of 100,000 shares of JDA's
common stock, are hereby amended and modified so that vesting shall cease as of
August 5, 1999, and the Vested Ratio (as defined in such option agreements)
shall be, and shall remain during the remaining term of the option agreements,
equal to seven-twelfths (7/12).
iii. April 2, 1999. Those certain stock option
agreements dated as of April 2, 1999 representing incentive and non-qualified
options to purchase an aggregate of 200,000 shares of JDA's common stock are
hereby terminated, effective immediately, and shall be of no further force nor
effect. Except as set forth herein, all stock option agreements between Employee
and JDA remain unmodified and in full force and effect.
4. DUTIES. Employee shall serve as the Co-Chairman of the Board of JDA
and in the executive capacity involved in mergers and acquisitions and strategic
alliances. Employee agrees that during the Employment Term he will devote his
best efforts and that amount of business time, attention, skill and efforts to
the business and affairs of JDA, and to the
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furtherance of JDA's best interests as is necessary to fulfill Employee's duties
as set forth herein. In addition to the duties and responsibilities described
above, JDA may, from time to time, establish standards and regulations regarding
its employees' employment (the "Employment Standards"). Employee further agrees
that in the performance of his duties and in all respects of his employment,
Employee shall also comply with any Employment Standards which JDA may from time
to time establish. To the extent of any inconsistencies between this Agreement
and any Employment Standards, the terms of this Agreement shall control.
5. EXPENSE REIMBURSEMENT, FACILITIES AND BENEFITS.
a. Reimbursement of Expenses and Facilities. JDA shall pay or
reimburse Employee for all reasonable travel and other expenses incurred by
Employee in performing Employee's obligations under this Agreement. JDA further
agrees to furnish Employee with such assistance and accommodations (i.e., an
office in the size, type and quality as provided to Employee prior to the
Effective Date) as shall be suitable to the character of Employee's position
with JDA and adequate for the performance of Employee's duties hereunder.
b. Other Benefits. During the period of employment under this
Agreement, Employee (and his spouse and eligible dependents) shall be entitled
to receive all other benefits of employment generally available to other members
of JDA's management and those benefits for which key executives are or shall
become eligible, when and as Employee becomes eligible therefor, including,
without limitation, group health, life and disability insurance benefits and
participation in JDA's 401(k) Plan.
c. Benefits Payable Upon Disability or Death. If Employee
shall be prevented during the term of this Agreement from properly performing
services hereunder by reason of illness or other physical or mental incapacity
("disabilities"), JDA shall continue to pay Employee 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 Employee during the term of this
Agreement, Employee's then current salary payable hereunder shall continue to be
paid, as a death benefit, to Employee's surviving spouse, or if there is no
spouse surviving, then to Employee's personal representative (as the case may
be) for a period of twelve (12) months following Employee's death.
6. TERMINATION.
a. Termination for Death or Permanent Disability. Upon
Employee's death or permanent disability (a disability which continues for a
period of twelve (12) months from the date of onset of such disability), this
Agreement shall terminate; provided that Employee and Employee's spouse (or
surviving spouse, as the case may be) and eligible dependents shall be entitled
to continuation rights under JDA'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 Employee's death, Employee's surviving spouse or Personal
Representative, as the case may be, shall be entitled to the death benefits
described in Section 5(c).
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b. Termination by JDA Without Cause. JDA may terminate this
Agreement without cause on three (3) years' written notice to Employee. For a
period of one (1) year following the date such written notice is given to
Employee, all the terms and conditions of this Agreement shall remain in full
force and effect. Effective one (1) year following the date JDA gives such
written notice to Employee, JDA and Employee may agree upon new duties to be
assigned to Employee (commensurate with Employee's level of expertise and
knowledge) and a salary (also commensurate with Employee's duties agreed to by
the parties) to be paid to Employee for the remaining two (2) year term of this
Agreement; provided that (regardless of whether the parties agree on Employee's
new duties and salary) for the remaining two (2) years of the term of this
Agreement, JDA will continue to provide Employee with the expense
reimbursements, facilities and benefits described in Section 6. After the
expiration of such two (2) year period, Employee and his spouse and eligible
dependents shall be entitled to continuation benefits under JDA'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.
c. Termination by Employee Without Cause. Employee may
terminate this Agreement without cause on one (1) year's written notice to JDA.
During such one year period, this Agreement and all of the terms hereof shall be
in full force and effect and shall not be affected by such written notice of
termination. Upon the conclusion of such one year period, this Agreement shall
terminate, and thereafter Employee and his spouse and eligible dependents shall
be entitled to continuation rights under JDA'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.
d. Termination for Cause. JDA may, without liability,
terminate Employee's employment hereunder for cause at any time upon written
notice from the Board of Directors specifying such cause; provided, however,
that such written notice shall not be delivered until after the Board of
Directors shall have given Employee written notice specifying the conduct
alleged to have constituted such cause and Employee has failed to cure such
conduct, if curable, within thirty (30) days following receipt of such notice.
As used in this Agreement, the term "cause" shall mean a willful breach of duty
in the course of Employee's employment or habitual neglect of Employee's duty.
(i) Contesting Termination. In the event of a
termination for cause pursuant to this Section 6(d), if Employee advises JDA in
writing that Employee disputes its action, JDA shall continue to pay Employee's
then-current compensation as specified in this Agreement until the earlier of:
(A) a final decision by the arbitrator(s) affirming JDA's actions; or (B) the
mutual written agreement of the parties. If the arbitrator(s) finds in favor of
Employee and does not confirm JDA's actions in attempting to terminate this
Agreement, then the term of this Agreement shall remain unaffected and Employee
shall continue in the employment of JDA hereunder.
(ii) Severance Benefits. Notwithstanding anything to
the contrary in this Agreement, if Employee is terminated by JDA for cause in
accordance with this Section 6(d) and if Employee does not contest such
termination as provided in this Section 6(d)(i) or if
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Employee does contest such termination and the arbitrator(s) issues an award
affirming JDA's action, then Employee shall be entitled to a severance benefit
equal to Employee's then current salary hereunder payable for one (1) year
following the date of the expiration of the cure period set forth in this
Section 6(d). Such severance benefit shall be payable at the same time and in
the same amount as Employee's then current salary. During such one (1) year
period, JDA shall continue to provide Employee and his spouse and eligible
dependents the same group health plan benefits provided to its other executives.
Following the expiration of such one year period, Employee and his spouse and
eligible dependents shall be entitled to such continuation rights under JDA's
group health plan as required under COBRA with the "qualifying event" occurring
and minimum period of coverage to commence upon the termination of such one (1)
year period.
7. NON-COMPETITION AND CONFIDENTIALITY.
a. Consideration. Employee unconditionally and irrevocably
covenants and agrees to be bound by the provisions of this Section 7. Employee
acknowledges and agrees that employment by JDA and the benefits Employee is
entitled to receive pursuant to this Agreement constitute the consideration paid
by JDA for Employee's agreement to be bound by this Section B. Employee further
acknowledges and agrees that the foregoing consideration is valuable and
sufficient to support the restrictions placed on Employer by this Section 7.
Employee further acknowledges that JDA has entered into this Agreement in strict
reliance on Employee's Agreement to, and the enforceability of, each term and
provision set forth in subsections 7(b) through 7(g) below.
b. Definition of JDA. For purposes of this Section 8, the term
"JDA" shall include all of JDA's subsidiaries, divisions and affiliates as from
time to time constituted.
c. Confidentiality. Employee shall execute and deliver to JDA
a letter agreement in the form attached hereto as Exhibit "A", which is
incorporated by this reference, whereby Employee covenants and agrees to keep
confidential that information known by or made available to Employee on account
of his relationship with JDA.
d. Covenant Not to Hire Employees. Employee covenants and
agrees that, for the Non-Competition Period, as defined below, Employee shall
not, directly or indirectly, hire or engage or attempt to hire or engage any
individual who shall have been an employee of JDA at any time during the period
beginning one (1) year prior to the Effective Date and ending at the end of the
Non-Competition Period, whether for or on behalf of Employee or for any entity
in which Employee shall have a direct or indirect interest (or any subsidiary or
affiliate of any such entity), whether as a proprietor, partner, co-venturer,
financier, investor or stockholder, director, officer, employer, employee,
servant, agent, representative or otherwise.
e. Non-Competition Agreement. In order to afford fair
protection to JDA and the goodwill it has established, Employee covenants and
agrees as follows:
(i) Non-Competition. Employee represents, warrants
and agrees with JDA that during the Employment Term and for a period of three
(3) years thereafter (the "Non-Competition Period"), Employee will not, directly
or indirectly, within the counties of any States
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of the United States or in any city in any country in which JDA currently or
upon Employee's termination of employment has business offices or conducts
business ("Prohibited Territory"), directly or indirectly, either alone or with
others, engage, and shall not make equity investments in, be employed by,
consult for, have an interest in or in any way assist any person, firm or
company, engaged in the business or practice of developing, marketing, licensing
and servicing retail merchandise management and/or point of sale software
directed to the retail industry and related activities ("Prohibited Activity").
This subparagraph (i) shall not apply to (1) such activities by Employee during
the term of and as reasonably incidental to Employee's performance under this
Agreement for the benefit of JDA and its affiliates; (2) investments Employee
may make in publicly held companies of less than 5% of such company's
outstanding shares; or (3) investments made by Employee in business entities
which a reasonable business person would not view to be a competitor of JDA.
(ii) Non-Solicitation. Employee further covenants and
agrees, during the Non-Competition Period, that Employee will not directly or
indirectly canvass, solicit, contact or accept any person or entity (or the
employee or agent of such person or entity) who is or was an existing or
prospective client customer, licensee, purchaser, supplier, distributor,
manufacturer or contractor of or to JDA and with whom Employee has obtained
significant business contacts ("Business Contacts"), for the purpose of directly
or indirectly engaging in any Prohibited Activity. Employee acknowledges that
the geographic scope of this non-solicitation covenant is not limited to the
Prohibited Territory. The geographic scope has not been limited since the
residences of the Business Contacts are not limited to the Prohibited Territory
and JDA has a legitimate protectable business interest in preventing the
solicitation of its Business Contacts regardless of the geographical locations
of the residences of the Business Contacts or where Employee is engaged in
business when such solicitations are attempted. Therefore, Employee agrees that
the time and geographic provisions of this non-solicitation covenant are
reasonable.
f. Reasonableness of Restrictions; Severability.
(i) Reasonableness. EMPLOYEE HAS CAREFULLY READ AND
CONSIDERED THE PROVISIONS OF SECTIONS 7(a) THROUGH 7(g), INCLUDING THE AGREEMENT
SET FORTH ON EXHIBIT "A", AND HAVING DONE SO, AGREES THAT THE RESTRICTIONS SET
FORTH IN THESE SECTIONS ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED FOR
THE PROTECTION OF THE INTERESTS OF JDA AND ITS BUSINESS, OFFICERS, DIRECTORS AND
EMPLOYEES. Employee further agrees that the restrictions set forth in this
Agreement do not impair Employee's ability to enter into the field or fields of
Employee's choice, subject to the restrictions on non-competition in the
Prohibited Territory and subject to all other provisions of this Section 7.
(ii) Severability. The provisions of this Agreement
shall be deemed severable, and the invalidity or unenforceability of any one or
more of the provisions shall not affect the validity and enforceability of the
remaining provisions.
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(iii) Assignment. Employee acknowledges the right and
ability of JDA to assign its rights under this Section 7 to third parties,
whether in connection with a merger, reorganization, liquidation or otherwise.
(iv) Reformation. In the event that any of the
provisions of this Section 7 should ever be deemed to exceed the time or
geographic limitations permitted by the applicable laws, then Employee and JDA
covenant and agree that such provisions shall be reformed to the maximum time or
geographic limitations permitted by applicable law.
g. Remedies of JDA. If Employee violates any of the provisions
of this Section 7, then JDA shall, notwithstanding any other term or provision
of this Agreement, have the unconditional right to:
(i) Withhold any payments, compensation,
distributions or consideration otherwise owed or to be paid to Employee pursuant
to this Agreement or any other agreement.
(ii) Seek, apply for and receive a temporary
restraining order without notice enjoining Employee and/or Employee's partners,
co-venturers, employers, employees, servants, agents, representatives and any
and all persons directly or indirectly acting for, on behalf of or with
Employee, from continued violation of this Section 7; for that purpose only,
Employee waives notice of any petition or application for a temporary
restraining order.
(iii) Seek and recover monetary damages for
Employee's violation of the provisions of this Section B.
(iv) Avail itself of all of the above remedies and
all other available legal and equitable remedies; these remedies shall be
cumulative and not mutually exclusive.
In addition, Employee covenants and agrees that, if he shall violate any of the
covenants or agreements under this Section 7, JDA shall be entitled to an
accounting and repayment of all profits, compensation, royalties, commissions,
remunerations or benefits which Employee directly or indirectly shall have
realized or may realize relating to, growing out of or in connection with any
such violation; such remedies shall be in addition to and not in limitation of
any injunctive relief or other rights or remedies to which JDA is or may be
entitled at law or in equity or otherwise under this Section 7.
8. MISCELLANEOUS.
a. Arbitration. If any controversy or claim arising out of
this Agreement (except for any controversy or claim arising out of Section 7)
cannot be resolved by the parties, such controversy or claim shall be resolved
by arbitration in accordance with the then current rules of the American
Arbitration Association governing commercial disputes (except as provided in
Section 7(f)(ii)). Such matters shall be arbitrated in Phoenix, Arizona, and,
for purposes of this Agreement, each party consents to arbitration in such
place. Arbitration proceedings shall commence when any party notifies the other
that a dispute subject to
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arbitration exists and requests that the dispute be arbitrated. If the parties
to a dispute cannot, within thirty (30) days after the date arbitration
proceedings commence, mutually agree upon an arbitrator or arbitrators to settle
their dispute, each party to the dispute shall select an arbitrator. The two
arbitrators shall, within fifteen (15) days after the appointment of the last
arbitrator, select a third arbitrator and the three arbitrators shall determine
the matter. Each arbitrator shall act impartially. If for any reason an
arbitrator is not appointed within the time provided or the arbitrators
appointed by the parties cannot agree upon a third arbitrator, then an
arbitrator shall be appointed by the Superior Court of the State of Arizona, in
and for the County of Maricopa, in accordance with A.R.S. Section 12-1501 et
seq. Unless the parties mutually agree otherwise, any arbitrator selected shall
be familiar with employer-employee disputes. The final decision will be that of
the sole arbitrator or of the majority of arbitrators, and shall be final and
binding upon the parties, except as otherwise provided by law. The sole
arbitrator or the majority of arbitrators shall also determine the allocation of
costs of such arbitration among the parties, and shall have the right to award
to the prevailing party all costs of arbitration, regardless of whether such
costs are taxable as such under Arizona law, including reasonable attorneys'
fees.
b. Assignment. Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, nor shall
Employee's rights be subject to encumbrance or subject to the claims of JDA's
creditors. Nothing in this Agreement shall prevent the consolidation of JDA
with, or its merger into, any other corporation, or the sale by JDA of all or
substantially all of its properties or assets; and this Agreement shall inure to
the benefit of, be binding upon and be enforceable by, any successor surviving
or resulting corporation, or other entity to which such assets shall be
transferred. This Agreement shall not be terminated by the voluntary or
involuntary dissolution of JDA.
c. Attorneys' Fees. In the event any party is required to hire
an attorney to enforce any of the terms and conditions of this Agreement, the
prevailing party shall be entitled to all reasonable attorneys' fees and costs
incurred.
d. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and hand delivered or sent by
certified or registered mail, return receipt requested, to his last known
residence in the case of Employee, or to its principal offices in the case of
JDA. Such notice shall be effective upon receipt in the case of hand-delivery or
two (2) days after deposit in the case of certified or registered mail.
e. Waiver of Breach. The waiver by any party of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by any party.
f. Severability. If any court of competent jurisdiction rules
that any portion of this Agreement is invalid for any reason, the remaining
portions of this Agreement shall nevertheless remain in full force and effect.
g. Non-Disclosure. Employee covenants and agrees to keep all
terms of this Agreement strictly confidential, and that Employee will not
disclose any information concerning
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this Agreement to anyone, including, but not limited to, present or prospective
employees of JDA, unless compelled to do so by court order or other lawful
authority.
h. Employee Review. By executing this Agreement, Employee
represents and covenants that he has carefully read each and every term and
provision contained in this Agreement in its entirety, that Employee has had an
opportunity to discuss the provisions of this Agreement with an attorney, that
Employee understands, accepts and agrees to be bound by each and every term and
provision of this Agreement and that Employee has executed this Agreement
knowingly, voluntarily and without any duress, compulsion or undue influence.
i. Amendment. This Agreement contains the entire and complete
understanding of the parties with regard to Employee's employment by JDA, and
supersedes any and all prior written or oral agreements of the parties. This
Agreement may not be varied, modified or contradicted by any other Agreement
unless such Agreement is later in time, in writing, and duly executed by the
party to be bound.
j. Governing Law. This Agreement is executed in, and shall be
governed by and construed in accordance with, the laws of the State of Arizona.
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IN WITNESS WHEREOF, the parties have executed duplicate originals of
this Agreement as of the date first hereinabove set forth.
JDA JDA SOFTWARE GROUP, INC., a Delaware corporation
By: ________________________________
Its: ________________________________
Subsidiary JDA SOFTWARE, INC.,
an Arizona corporation
By: ________________________________
Its: ________________________________
Employee ______________________________________
XXXXXXXXX X. XXXXX
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EXHIBIT A
JDA SOFTWARE GROUP, INC.
January 1, 1998
XX. XXXXXXXXX X. XXXXX
0000 Xxxxx 00xx Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
Dear Mr. Pakis:
This letter agreement sets forth and confirms certain
understandings between you and JDA Software Group, Inc., a Delaware corporation
("Company") with respect to your employment with the Company and your
responsibilities and obligations to the Company, its current and future
affiliates (collectively, the "Affiliates"), and third parties who have provided
confidential information to the Company or any of its Affiliates ("Third-Party
Beneficiaries").
You understand that your employment (or continued employment)
with the Company is conditioned upon and in consideration for your entering into
this agreement. This agreement is intended to protect important interests of the
Company, its Affiliates, and Third-Party Beneficiaries, particularly the
interests of those entities in valuable technology, business and confidential
information that the Company and its Affiliates have acquired or obtained access
to over the years. It is hoped that in the long run the terms of this agreement
will be a benefit to all personnel by promoting the welfare and success of the
Company as a leader in the industry and in the community.
During the course of your employment, you will obtain access
to information regarding the business of the Company and its Affiliates which is
confidential to the Company, its Affiliates or Third-Party Beneficiaries
("Confidential Information"). For the purposes of this agreement, "Confidential
Information" includes, but is not limited to:
(1) Application, data base, and other computer software
developed or acquired by the Company or any of its Affiliates, whether now or
hereafter existing, and all modifications, enhancements and versions thereof and
all options available with respect thereto, and all future products developed or
derived therefrom;
(2) Source and object codes, flowcharts, algorithms, coding
sheets, routines, sub-routines, design concepts and related documentation and
manuals;
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(3) Marketing techniques and arrangements, mailing lists,
purchasing information, pricing policies, quoting procedures, financial
information, customer and prospect names and requirements, employee, customer,
supplier and distributor data and other materials and information relating to
the Company's business and activities and the manner in which the Company does
business;
(4) Discoveries, concepts and ideas including, without
limitation, the nature and results of research and development activities,
processes, formulas, inventions, computer-related equipment or technology,
techniques, "know-how," designs, drawings and specifications;
(5) Any other materials or information related to the business
or activities of the Company that are not generally known to others engaged in
similar businesses or activities;
(6) All ideas which are derived from or related to your access
to or knowledge of any of the above enumerated materials and information; and
(7) Any materials or information related to the business or
activities of the Third-Party Beneficiaries that are received by the Company or
any Affiliate in confidence or subject to nondisclosure or similar covenants,
including without limitation, confidential, proprietary business records,
financial information, trade secrets, strategies, methods and practices of
licensees of JDA software.
Maintaining the confidentiality of the Confidential
Information is of utmost importance to the Company and its Affiliates.
Accordingly, you agree that, except in the performance of your duties as an
employee of the Company, from and after the date of this agreement (including
after the termination of your relationship with the Company, for whatever
reason), you will not disclose to any person, association, firm, corporation or
other entity in any manner, directly or indirectly, any of the Confidential
Information (in whatever form), received, acquired, or developed by you through
your association with the Company or any Affiliate, or use, or permit any
person, association, corporation or other entity to use, in any manner, directly
or indirectly, any such Confidential Information.
When your relationship with the Company ends (regardless of
the reason), and earlier if the Company requests, you agree to return to the
Company all materials, correspondence, documents and other writings, computer
programs and printouts, and other information in written, graphic, magnetic,
optical, computerized or other form, which relate to or reflect any Confidential
Information, or the business of the Company or any Affiliate, and you agree that
you will not retain any copies thereof, regardless of where or by whom such
materials and information were kept or prepared.
You acknowledge that items (1) through (6) of the Confidential
Information that you make, conceive, discover or develop, whether alone or
jointly with others, at any time during your employment with the Company,
whether at the request or upon the suggestion of the Company or otherwise, shall
be the sole and exclusive property of the Company; provided that such items
relate to or are useful in connection with any business now or hereafter carried
on or contemplated by the Company or any Affiliate, including developments or
expansions of their
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present fields of operations. You agree to promptly disclose to the Company all
Confidential Information made, conceived, discovered, or developed in whole or
in part by you for the Company or any Affiliate during the term of your
employment with the Company and to assign to the Company or such Affiliate any
right, title or interest you may have in such Confidential Information. You
agree to execute any instruments and to do all other things reasonably requested
by the Company (both during and after your employment with the Company) in order
to vest more fully in the Company or such Affiliate all ownership rights in
those items hereby transferred by you to the Company or such Affiliate. If any
one or more of such items are protectable by copyright, and are deemed in any
way to fall within the definition of "work made for hire," as that term is
defined in 17 U.S.C. Section 101, such works shall be considered "works made for
hire," the copyright of which shall be owned solely, completely and exclusively
by the Company or such Affiliate. If any one or more of the aforementioned items
are protectable by copyright and are not considered to be included in the
categories of works covered by the "work made for hire" definition contained in
17 U.S.C. Section 101, such works shall be deemed to be assigned and transferred
completely and exclusively to the Company or such affiliate by virtue of your
execution of this letter.
The terms and provisions of this Agreement shall be binding upon you and the
Company, and its successors and assigns and shall inure to the benefit of you,
the Company, its Affiliates and the Third-Party Beneficiaries. The failure of
the Company or any Affiliate at any time or from time to time to require
performance of your obligations under this agreement shall in no manner affect
the right of the Company or such Affiliate to enforce any provisions of this
agreement at a subsequent time, and shall not constitute a waiver of any rights
arising out of any subsequent or prior breach. This agreement (a) may not be
modified orally, but only by written agreement signed by you and the designee of
the Company's Board of Directors; and (b) supersedes any prior agreements on
this subject. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement. Nothing in this Agreement shall be construed as a
guarantee that your employment will continue for any specific period of time.
This Agreement shall be governed by and construed in accordance with the laws of
Arizona. If this is consistent with your understanding of the terms and
conditions of your employment, please so indicate by signing in the space
provided below.
JDA SOFTWARE GROUP, INC.
By: _____________________________
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
ACCEPTED AND AGREED:
XXXXXXXXX X. XXXXX
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