Exhibit 10.2
AMENDED AND RESTATED INDEMNITY AGREEMENT
This Amended and Restated Indemnity
Agreement, dated as of
, 2007, is made by and between JDA Software Group, Inc., a Delaware
corporation (the “ Company ”), and
(the “ Indemnitee ”).
RECITALS
A. The Company and Indemnitee
have previously entered into an Indemnity Agreement (the “
Previous Agreement ”) in connection with
Indemnitee’s services with the Company.
B. The Company and Indemnitee
now desire to amend and restate the Previous Agreement in its
entirety in connection with Indemnitee’s continued service
with the Company effective as of the date hereof.
C. The Company is aware that
competent and experienced persons are increasingly reluctant to
serve as directors, officers or agents of corporations unless they
are protected by comprehensive liability insurance or
indemnification, due to increased exposure to litigation costs and
risks resulting from their service to such corporations, and due to
the fact that the exposure frequently bears no reasonable
relationship to the compensation of such directors, officers and
other agents.
D. The statutes and judicial
decisions regarding the duties of directors and officers are often
difficult to apply, ambiguous, or conflicting, and therefore fail
to provide such directors, officers and agents with adequate,
reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action to take.
E. Plaintiffs often seek damages
in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense
and/or settlement of such litigation is often beyond the personal
resources of directors, officers and other agents.
F. The Company believes that it
is unfair for its directors, officers and agents and the directors,
officers and agents of its subsidiaries to assume the risk of huge
judgments and other expenses which may occur in cases in which the
director, officer or agent received no personal profit and in cases
where the director, officer or agent was not culpable.
G. The Company recognizes that the
issues in controversy in litigation against a director, officer or
agent of a corporation such as the Company or its subsidiaries are
often related to the knowledge, motives and intent of such
director, officer or agent, that he is usually the only witness
with knowledge of the essential facts and exculpating circumstances
regarding such matters, and that the long period of time which
usually elapses before the trial or other disposition of such
litigation often extends beyond the time that the director, officer
or agent can reasonably recall such matters and may extend beyond
the normal time for retirement for such director, officer or agent
with the result that he, after retirement or in the event of his
death, his spouse, heirs, executors or administrators, may be faced
with limited ability and undue hardship
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in
maintaining an adequate defense, which may discourage such a
director, officer or agent from serving in that position.
H. Based upon their experience
as business managers, the Board of Directors of the Company (the
“ Board ”) has concluded that, to retain and
attract talented and experienced individuals to serve as directors,
officers and agents of the Company and its subsidiaries and to
encourage such individuals to take the business risks necessary for
the success of the Company and its subsidiaries, it is necessary
for the Company to contractually indemnify its directors, officers
and agents and the directors, officers and agents of its
subsidiaries, and to assume for itself maximum liability for
expenses and damages in connection with claims against such
directors, officers and agents in connection with their service to
the Company and its subsidiaries, and has further concluded that
the failure to provide such contractual indemnification could
result in great harm to the Company and its subsidiaries and the
Company’s stockholders.
I. Section 145 of the
General Corporation Law of Delaware, under which the Company is
organized (“ Section 145 ”), empowers the
Company to indemnify its directors, officers, employees and agents
by agreement and to indemnify persons who serve, at the request of
the Company, as the directors, officers, employees or agents of
other corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not
exclusive.
J. The Company desires and has
requested the Indemnitee to serve or continue to serve as a
director, officer or agent of the Company and/or one or more
subsidiaries of the Company free from undue concern for claims for
damages arising out of or related to such services to the Company
and/or one or more subsidiaries of the Company.
K. Indemnitee is willing to
serve, or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that he is furnished the
indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions .
(a)
Agent . For the purposes of this Agreement,
“agent” of the Company means any person who is or was a
director, officer, employee or other agent of the Company or a
subsidiary of the Company; or is or was serving at the request of,
for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company as a director, officer,
employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise; or was a
director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the Company or a
subsidiary of the Company, or was a director, officer, employee or
agent of another enterprise at the request of, for the convenience
of, or to represent the interests of such predecessor
corporation.
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(b)
Expenses . For purposes of this Agreement,
“expenses” include all out-of-pocket costs of any type
or nature whatsoever (including, without limitation, all
attorneys’ fees and related disbursements), actually and
reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or
enforcing a right to indemnification under this Agreement or
Section 145 or otherwise; provided, however, that
“expenses” shall not include any judgments, fines,
ERISA excise taxes or penalties, or amounts paid in settlement of a
proceeding.
(c)
Proceeding . For the purposes of this Agreement,
“proceeding” means any threatened, pending, or
completed action, suit or other proceeding, whether civil,
criminal, administrative, or investigative.
(d)
Subsidiary . For purposes of this Agreement,
“subsidiary” means any corporation of which more than
50% of the outstanding voting securities is owned directly or
indirectly by the Company, by the Company and one or more other
subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve .
The Indemnitee agrees to serve and/or continue to serve as agent of
the Company, at its will (or under separate agreement, if such
agreement exists), in the capacity Indemnitee currently serves as
an agent of the Company, so long as he is duly appointed or elected
and qualified in accordance with the applicable provisions of the
Bylaws of the Company or any subsidiary of the Company or until
such time as he tenders his resignation in writing; provided,
however, that nothing contained in this Agreement is intended to
create any right to continued employment by Indemnitee.
3. Liability Insurance
.
(a)
Maintenance of D&O Insurance . The Company hereby
covenants and agrees that, so long as the Indemnitee shall continue
to serve as an agent of the Company and thereafter so long as the
Indemnitee shall be subject to any possible proceeding by reason of
the fact that the Indemnitee was an agent of the Company, the
Company, subject to Section 3(c), shall promptly obtain and
maintain in full force and effect directors’ and
officers’ liability insurance (“ D&O
Insurance ”) in reasonable amounts from established and
reputable insurers.
(b)
Rights and Benefits . In all policies of D&O Insurance,
the Indemnitee shall be named as an insured in such a manner as to
provide the Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company’s directors, if
the Indemnitee is a director; or of the Company’s officers,
if the Indemnitee is not a director of the Company but is an
officer; or of the Company’s key employees, if the Indemnitee
is not a director or officer but is a key employee.
(c)
Limitation on Required Maintenance of D&O Insurance .
Notwithstanding the foregoing, the Company shall have no obligation
to obtain or maintain D&O Insurance if the Company determines
in good faith that such insurance is not reasonably available, the
premium costs for such insurance are disproportionate to the amount
of coverage provided, the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or
the Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company.
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4. Mandatory
Indemnification . Subject to Section 10 below, the Company
shall indemnify the Indemnitee as follows:
(a)
Third Party Actions . If the Indemnitee is a person who was
or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the Company) by reason
of the fact that he is or was an agent of the Company, or by reason
of anything done or not done by him in any such capacity, the
Company shall indemnify the Indemnitee against any and all expenses
and liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes and penalties, and amounts
paid in settlement) actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of
such proceeding, provided the Indemnitee acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Company and its stockholders, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
(b)
Derivative Actions . If the Indemnitee is a person who was
or is a party or is threatened to be made a party to any proceeding
by or in the right of the Company by reason of the fact that he is
or was an agent of the Company, or by reason of anything done or
not done by him in any such capacity, the Company shall indemnify
the Indemnitee against all expenses actually and reasonably
incurred by him in connection with the investigation, defense,
settlement, or appeal of such proceeding, provided the Indemnitee
acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and its
stockholders; except that no indemnification under this subsection
4(b) shall be made in respect to any claim, issue or matter as to
which such person shall have been finally adjudged to be liable to
the Company by a court of competent jurisdiction unless and only to
the extent that the court in which such proceeding was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
amounts which the court shall deem proper.
(c)
Actions where Indemnitee is Deceased . If the Indemnitee is
a person who was or is a party or is threatened to be made a party
to any proceeding by reason of the fact that he is or was an agent
of the Company, or by reason of anything done or not done by him in
any such capacity, and if prior to, during the pendency of after
completion of such proceeding Indemnitee becomes deceased, the
Company shall indemnify the Indemnitee’s heirs, executors and
administrators against any and all expenses and liabilities of any
type whatsoever (including, but not limited to, judgments,
fine
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