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Exhibit 10.34
JDA SOFTWARE GROUP, INC.
AMENDMENT OF
STOCK OPTION AGREEMENT
THIS AMENDMENT OF STOCK OPTION AGREEMENT (the "Amendment") is made by and
between JDA Software Group, Inc., a Delaware corporation (the "Company"), and
Xxxxx X. Xxxxxxx (the "Optionee").
RECITALS
WHEREAS, on ____________, the Company granted to the Optionee an option
to purchase ________________ shares of the Company's common stock at an exercise
price of $______________ per share (the "Option"), which was evidenced by a
Stock Option Agreement (the "Option Agreement"); and
WHEREAS, the Company and the Optionee wish to amend the Option to
provide for acceleration of vesting of any unvested shares subject to the Option
upon the occurrence of certain events related to an acquisition of the Company,
pursuant to the terms and conditions set forth below;
AGREEMENT
NOW, THEREFORE, the Company and the Optionee agree as follows:
1. Effective Date. This Amendment is effective as of May 22, 1998.
2. Acceleration of Vesting. Notwithstanding any provisions of the
Option Agreement to the contrary, in the event of a Termination After Transfer
of Control (as defined below), any unexercised portion of the Option shall be
immediately exercisable and vested in full as of the date of the Optionee's
termination of employment with the Company.
(a) Post-Termination Exercise. In the event of a Termination After
Transfer of Control, the Option, to the extent unexercised by the Optionee on
the later of (i) the date on which the Optionee's employment terminated and, if
applicable, (ii) the termination of the Consulting Agreement (such later date,
the "Termination Date"), may be exercised by the Optionee within three (3)
months (or six (6) months if the Optionee is subject to restrictions on transfer
to comply with "Pooling-of-Interests" accounting rules) following the
Termination Date, but in any event no later than the expiration date set forth
in the Option Agreement.
(b) Escrow. In the event that the Termination After Transfer of
Control results from the Optionee's resignation for Good Reason and such
termination occurs within nine (9) months after the Transfer of Control, the
Company may require that any certificates
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evidencing shares which were acquired upon an exercise of the Option that was
permissible solely by reason of this Amendment be deposited with an agent
designated by the Company under the terms and conditions of an escrow agreement
reasonably approved by the Optionee and the Company. The escrow agent shall hold
the certificates in order to secure the Optionee's agreement to continue in the
full time employ of the Company or its parent or successor for a period of up to
nine (9) months following a Transfer of Control. Such employment shall be
pursuant to an employment agreement ("Employment Agreement") reasonably
acceptable to the Employee which shall provide in its essential terms (i) that
Optionee shall continue to receive his salary and bonus at such rate and upon
such terms as prior to the Transfer of Control; (ii) that Optionee's
responsibilities shall not be diminished during the term of the Employment
Agreement; (iii) that Optionee shall not be required to relocate during the term
of the Employment Agreement; and (iv) such other terms as are consistent with
maintaining Optionee's stature and responsibilities. While the certificates are
held in escrow, the Optionee may direct the use (including without limitation
the sale, transfer or other distribution for fair value) and voting of the
shares represented by the escrowed certificates, although the escrowed shares
(or the proceeds from the transfer thereof) may not be released from escrow
until the expiration of the term of the Employment Agreement. The Company shall
bear the expenses of any escrow established pursuant to this Amendment.
3. Pooling of Interests Accounting. Notwithstanding anything in the
Option Agreement and this Amendment to the contrary, no acceleration of
exercisability or vesting of the Option shall occur pursuant to this Amendment
in the event that (i) the Securities and Exchange Commission (the "SEC") asserts
that such acceleration of exercisability or vesting precludes the use of
"pooling of interests" accounting treatment of the Transfer of Control, (ii) the
Transfer of Control is supported by the Board of Directors of the Company, and
(iii) the SEC will not reverse its position following reasonable persuasive
efforts by the Company. In the event that acceleration of exercisability or
vesting of the Option is precluded as a result of this Section 3, the Company
and the Optionee shall enter into the Consulting Agreement as soon as
practicable following such determination.
4. Section 4999 Limitation. This Section 4 shall apply only if the
Optionee, on an after-tax basis, would receive more value under this Option
after the application of this Section 4 than before the application of this
Section 4. For this purpose, "after-tax basis" shall mean a calculation taking
into account all federal and state income and excise taxes imposed on the
Employee, including (without limitation) the excise tax described in section
4999 of the Internal Revenue Code of 1986, as amended (the "Code"). If this
Section 4 is applicable, it shall supersede any conflicting provision of this
Amendment and the Option Agreement.
(a) Basic Rule. Options shall accelerate pursuant to the
provisions of this Option Agreement, including without limitation those set
forth in Section 2 hereof, to the extent but only to the extent that such
acceleration would not subject the Optionee to the excise tax described in
section 4999 of the Code. All calculations required by this Section 4 shall be
made by the independent auditors retained by the Company most recently prior to
the Transfer of Control (the "Auditors"), based on information supplied by
Company and Optionee, and shall be
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binding on the Company and the Optionee. All fees and expenses of such auditors
shall be paid by the Company.
5. Definitions. For purposes of this Amendment, the following terms
shall have the meanings set forth below:
(a) "CAUSE" shall occur if the Optionee's employment is
terminated for any of the following reasons:
(i) Theft, dishonesty, or intentional falsification of any
employment or Company records;
(ii) Improper disclosure of the Company's confidential or
proprietary information; or
(iii) The Optionee's conviction (including any plea of guilty
or nolo contendere) for any criminal act that impairs his ability to perform his
duties for the Company.
(b) "CONSULTING AGREEMENT" shall mean the Consulting Agreement in
substantially the form attached hereto as Exhibit A.
(c) "GOOD REASON" shall mean the occurrence of any of the
following conditions, without the Optionee's written consent, which condition(s)
remain(s) in effect twenty (20) days after written notice to the Company from
Optionee of such condition(s):
(i) a material, adverse change in the Optionee's
responsibilities or duties, as measured against the Optionee's responsibilities
or duties immediately prior to the Transfer of Control, causing the Optionee's
position to be of materially less stature or responsibility; provided, that for
purposes of this Amendment, a material, adverse change shall be deemed to occur
if the Optionee no longer serves as Chief Executive Officer (who shall be the
principal executive officer) of a publicly-traded company reporting directly to
the Board of Directors;
(ii) the relocation of the Optionee's work place for the
Company to a location more than thirty (30) miles from the Optionee's work
location prior to the Transfer of Control;
(iii) a failure to pay, or any reduction of the Optionee's
base salary as in effect immediately prior to the Transfer of Control or the
Optionee's bonus compensation in effect prior to the Transfer of Control
(subject to applicable performance requirements with respect to the actual
amount of bonus compensation earned by the Optionee); or
(iv) any material breach of this Amendment by the Company.
(d) An "OWNERSHIP CHANGE EVENT" shall be deemed to have occurred
if any of the following occurs with respect to the Company:
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(i) the direct or indirect sale or exchange in a single or
series of related transactions by the stockholders of the Company of more than
fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company is a
party;
(iii) the sale, exchange, or transfer of all or substantially
all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
(e) "TERMINATION AFTER TRANSFER OF CONTROL" shall mean the
occurrence, within eighteen (18) months following a Transfer of Control, of
either (i) termination of the Optionee's employment by the Company for any
reason other than for Cause, or (ii) the Optionee's resignation for Good Reason.
"Termination After Transfer of Control" shall not include any termination of the
employment of the Optionee (i) by the Company for Cause; (ii) by the Company as
a result of the disability of the Optionee; (iii) as a result of the death of
the Optionee; or (iv) as a result of the voluntary termination of employment by
the Optionee (other than for Good Reason).
(f) "TRANSFER OF CONTROL" shall mean an Ownership Change Event or
a series of related Ownership Change Events (collectively, the "TRANSACTION")
wherein the stockholders of the Company immediately before the Transaction do
not retain immediately after the Transaction, in substantially the same
proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting stock of the Company or the corporation or corporations to
which the assets of the Company were transferred (the "TRANSFEREE
CORPORATION(S)"), as the case may be.
6. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) or to all or substantially all of the Company's
business and/or assets shall assume the obligations under this Amendment and
agree expressly to perform the obligations under this Amendment in the same
manner and to the same extent as the Company would be required to perform such
obligations in the absence of a succession. Failure of the Company to obtain
such agreement shall be a material breach of this Amendment. For all purposes
under this Amendment, the term "Company" shall include any successor to the
Company's business and/or assets which executes and delivers the assumption
agreement described in this subsection (a) or which becomes bound by the terms
of this Amendment by operation of law.
(b) Optionee's Successors. All rights of the Optionee hereunder
shall inure to the benefit of, and be enforceable by, the Optionee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Optionee shall have no
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right to assign any of his obligations or duties under this Amendment to any
other person or entity.
7. Continuation of Other Terms. Except as set forth herein, all other
terms and conditions of the Option Agreement shall remain in full force and
effect.
8. Applicable Law. This Amendment shall be governed by the laws of
the State of Delaware as such laws are applied to agreements between Delaware
residents entered into and to be performed entirely within the State of
Delaware.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date first above written.
JDA SOFTWARE GROUP, INC.
By:_________________________________
Title:______________________________
OPTIONEE:
____________________________________
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