<PAGE>
Exhibit 10.33
JDA SOFTWARE GROUP, INC.
RESTRICTED STOCK AGREEMENT
(MAGNUSON)
JDA
Software Group, Inc. has granted to the Participant named in
the
Notice of Grant of Restricted Stock (the "GRANT NOTICE") to which
this
Restricted Stock Agreement (the "AGREEMENT") is attached an Award
consisting of
Shares subject to the terms and conditions set forth in the Grant
Notice and
this Agreement. The Award has been granted pursuant to the JDA
Software Group,
Inc. 2005 Performance Incentive Plan (the "PLAN"), as amended to
the Date of
Grant, the provisions of which are incorporated herein by
reference. By signing
the Grant Notice, the Participant: (a) acknowledges receipt of and
represents
that the Participant has read and is familiar with the Grant
Notice, this
Agreement, the Plan and a prospectus for the Plan in the form most
recently
registered with the Securities and Exchange Commission (the "PLAN
PROSPECTUS"),
(b) accepts the Award subject to all of the terms and conditions of
the Grant
Notice, this Agreement and the Plan and (c) agrees to accept as
binding,
conclusive and final all decisions or interpretations of the
Committee upon any
questions arising under the Grant Notice, this Agreement or the
Plan. Unless
otherwise defined herein, capitalized terms shall have the meanings
assigned to
such terms in the Grant Notice or the Plan.
1.
DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. Whenever used herein, the following terms
shall
have their respective meanings set forth below:
(a) "CAUSE" shall mean the Participant's: (a) theft,
dishonesty, or intentional falsification of any employment or
Participating
Company Group records; improper disclosure of the Participating
Company Group's
confidential or proprietary information; (b) the Participant's
conviction
(including any plea of guilty or nolo contendere) for any criminal
act that
materially impairs the Participant's ability to perform the
Participant's duties
for the Participating Company Group; or (c) a material breach of
the
Participant's Employment Agreement dated July 23, 2002, as amended
from time to
time with the Company (the "EMPLOYMENT AGREEMENT") by the
Participant which is
not cured within thirty (30) days of receipt by the Participant of
reasonably
detailed written notice from the Participating Company Group.
(b) "GOOD REASON" shall mean any one or more of the following:
(i) without the Participant's express written consent, a
material, adverse change in the Participant's responsibilities or
duties after
the date of the Change in Control, causing the Participant's
position to be of
materially less stature or responsibility than immediately prior to
the date of
the Change in Control; provided, that for purposes of this
Agreement and without
limiting the generality of the foregoing, a material, adverse
change shall be
deemed to occur if the Participant no longer serves as Chief
Financial Officer
(who shall be the most senior financial officer) of a
publicly-traded company
reporting directly to the Chief Executive Officer of the
Participating Company
Group;
<PAGE>
(ii) the relocation of the principal place of the
Participant's Service to a location that is more than thirty (30)
miles from the
Participant's principal place of Service immediately prior to the
date of the
Change in Control over the Participant's written objection;
(iii) without the Participant's express written consent,
any failure by the Participating Company Group to pay, or any
material reduction
by the Participating Company Group of, (1) the Participant's base
salary in
effect immediately prior to the date of the Change in Control, or
(2) the
Participant's bonus compensation, if any, in effect immediately
prior to the
date of the Change in Control (subject to applicable performance
requirements
with respect to the actual amount of bonus compensation earned by
the
Participant); or
(iv) any material breach of the Employment Agreement by
the Participating Company Group that is not cured within thirty
(30) days of the
Participating Company Group's receipt of written notice from the
Participant
specifying such breach.
(c) "TERMINATION AFTER CHANGE IN CONTROL" shall mean either of
the following events occurring within twelve (12) months after a
Change in
Control:
(i) termination by the Participating Company Group of
the Participant's Service with the Participating Company Group for
any reason
other than for Cause; or
(ii) the Participant's resignation for Good Reason from
all capacities in which the Participant is then rendering Service
to the
Participating Company Group within a reasonable period of time
following the
event constituting Good Reason.
Notwithstanding any provision herein to the contrary, Termination
After Change
in Control shall not include any termination of the Participant's
Service with
the Participating Company Group which (1) is for Cause; (2) is a
result of the
Participant's death or disability; (3) is a result of the
Participant's
voluntary termination of Service other than for Good Reason; or (4)
occurs prior
to the effectiveness of a Change in Control.
1.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation
of any
provision of this Agreement. Except when otherwise indicated by the
context, the
singular shall include the plural and the plural shall include the
singular. Use
of the term "or" is not intended to be exclusive, unless the
context clearly
requires otherwise.
2.
ADMINISTRATION.
All questions of interpretation concerning the Grant Notice and
this
Agreement shall be determined by the Committee. All determinations
by the
Committee shall be final and binding upon all persons having an
interest in the
Award. Any Officer shall have the authority to act on behalf of the
Company with
respect to any matter, right, obligation, or election which is
the
responsibility of or which is allocated to the Company herein,
provided the
Officer has apparent authority with respect to such matter, right,
obligation,
or election.
2
<PAGE>
3.
THE
AWARD.
3.1 GRANT AND ISSUANCE OF SHARES. On the Date of Grant, the
Participant shall acquire and the Company shall issue, subject to
the provisions
of this Agreement, a number of Shares equal to the Total Number of
Shares set
forth in the Grant Notice. As a condition to the issuance of the
Shares, the
Participant shall execute and deliver to the Company along with the
Grant Notice
the Assignment Separate from Certificate duly endorsed (with date
and number of
shares blank) in the form attached to the Grant Notice.
3.2 NO MONETARY PAYMENT REQUIRED. The Participant is not required
to
make any monetary payment (other than applicable tax withholding,
if any) as a
condition to receiving the Shares, the consideration for which
shall be past
services actually rendered and/or future services to be rendered to
a
Participating Company or for its benefit. Notwithstanding the
foregoing, if
required by applicable state corporate law, the Participant shall
furnish
consideration in the form of cash or past services rendered to a
Participating
Company or for its benefit having a value not less than the par
value of the
Shares issued pursuant to the Award.
3.3 BENEFICIAL OWNERSHIP OF SHARES; CERTIFICATE REGISTRATION.
The
Participant hereby authorizes the Company, in its sole discretion,
to deposit
the Shares with the Company's transfer agent, including any
successor transfer
agent, to be held in book entry form during the term of the Escrow
pursuant to
Section 6. Furthermore, the Participant hereby authorizes the
Company, in its
sole discretion, to deposit, following the term of such Escrow, for
the benefit
of the Participant with any broker that the Company requires the
Participant to
have an account relationship with, any or all Shares which are no
longer subject
to such Escrow. Except as provided by the foregoing, a certificate
for the
Shares shall be registered in the name of the Participant, or, if
applicable, in
the names of the heirs of the Participant.
3.4 ISSUANCE OF SHARES IN COMPLIANCE WITH LAW. The issuance of
the
Shares shall be subject to compliance with all applicable
requirements of
federal, state or foreign law with respect to such securities. No
Shares shall
be issued hereunder if their issuance would constitute a violation
of any
applicable federal, state or foreign securities laws or other law
or regulations
or the requirements of any stock exchange or market system upon
which the Stock
may then be listed. The inability of the Company to obtain from any
regulatory
body having jurisdiction the authority, if any, deemed by the
Company's legal
counsel to be necessary to the lawful issuance of any Shares shall
relieve the
Company of any liability in respect of the failure to issue such
Shares as to
which such requisite authority shall not have been obtained. As a
condition to
the issuance of the Shares, the Company may require the Participant
to satisfy
any qualifications that may be necessary or appropriate, to
evidence compliance
with any applicable law or regulation and to make any
representation or warranty
with respect thereto as may be requested by the Company.
4.
VESTING OF
SHARES.
4.1 NORMAL VESTING.
Except as provided in Section 4.2, the Shares
shall vest and become Vested Shares as provided in the Grant
Notice.
4.2 TERMINATION AFTER
CHANGE IN CONTROL. If
the Participant's
Service ceases as a result of a Termination After Change in
Control, the
vesting of the Shares shall be accelerated in full and the Total
Number of
Shares shall be deemed Vested Shares effective as of the date on
which
Participant's Service terminated.
3
<PAGE>
5.
COMPANY
REACQUISITION RIGHT.
(A) GRANT OF COMPANY REACQUISITION RIGHT. Except to the extent
otherwise provided in an employment agreement between a
Participating Company
and the Participant which refers to this Award, in the event that
(a) the
Participant's Service terminates for any reason or no reason, with
or without
Cause, or (b) the Participant, the Participant's legal
representative, or other
holder of the Shares, attempts to sell, exchange, transfer, pledge,
or otherwise
dispose of (other than pursuant to an Ownership Change Event),
including,
without limitation, any transfer to a nominee or agent of the
Participant, any
Shares which are not Vested Shares ("UNVESTED SHARES"), the Company
shall
automatically reacquire the Unvested Shares, and the Participant
shall not be
entitled to any payment therefor (the "COMPANY REACQUISITION
RIGHT").
5.2 OWNERSHIP CHANGE EVENT. Upon the occurrence of an Ownership
Change Event, any and all new, substituted or additional securities
or other
property to which the Participant is entitled by reason of the
Participant's
ownership of Unvested Shares shall be immediately subject to the
Company
Reacquisition Right and included in the terms "Shares," "Stock" and
"Unvested
Shares" for all purposes of the Company Reacquisition Right with
the same force
and effect as the Unvested Shares immediately prior to the
Ownership Change
Event. For purposes of determining the number of Vested Shares
following an
Ownership Change Event, credited Service shall include all Service
with any
corporation which is a Participating Company at the time the
Service is
rendered, whether or not such corporation is a Participating
Company both before
and after the Ownership Change Event.
6.
ESCROW.
6.1 APPOINTMENT OF AGENT. To ensure that Shares subject to the
Company Reacquisition Right will be available for reacquisition,
the Participant
and the Company hereby appoint the Secretary of the Company, or any
other person
designated by the Company, as their agent and as attorney-in-fact
for the
Participant (the "AGENT") to hold any and all Unvested Shares and
to sell,
assign and transfer to the Company any such Unvested Shares
reacquired by the
Company pursuant to the Company Reacquisition Right. The
Participant understands
that appointment of the Agent is a material inducement to make this
Agreement
and that such appointment is coupled with an interest and is
irrevocable. The
Agent shall not be personally liable for any act the Agent may do
or omit to do
hereunder as escrow agent, agent for the Company, or attorney in
fact for the
Participant while acting in good faith and in the exercise of the
Agent's own
good judgment, and any act done or omitted by the Agent pursuant to
the advice
of the Agent's own attorne
