As filed
with the Securities and Exchange Commission on November 3,
2010
Registration
No. 333-167429
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 2
to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JDA SOFTWARE GROUP,
INC.
Additional Registrants Listed
on Schedule A Hereto
(Exact name of registrant as
specified in its charter)
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Delaware
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7371
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86-0787377
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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14400 North 87th Street
Scottsdale, Arizona 85260
(480) 308-3000
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
G. Michael Bridge, Esq.
Senior Vice President, General Counsel
and Corporate Secretary
JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, Arizona 85260
(480) 308-3000
(Name, address, including
zip code, and telephone number, including area code, of agent
for service)
With a copy to:
Steven D. Pidgeon, Esq.
David P. Lewis, Esq.
DLA Piper LLP (US)
2525 East Camelback Road, Suite 1000
Phoenix, Arizona 85016
(480) 606-5100
Approximate date of commencement of proposed sale of the
securities to the public:
As soon as practicable after this
registration statement becomes effective and all other
conditions to the proposed merger described herein have been
satisfied or waived.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check
the following
box.
o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
þ
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Non-accelerated filer
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Smaller reporting company
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(Do
not check if a smaller reporting company)
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Aggregate Offering
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Registration
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Securities to be Registered
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Registered
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Price
(1)
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Fee
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8.00% Senior Notes Due 2014
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$275,000,000
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$275,000,000
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$19,607.50 (4)
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Guarantees of 8.00% Senior Notes Due 2014 (2)
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$275,000,000
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(3)
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(1)
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Estimated solely for the purpose of
calculating the registration fee pursuant to rule 457 under
the Securities Act of 1933, as amended (the Securities
Act).
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(2)
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See schedule A to this cover
page for a list of guarantors.
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(3)
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Pursuant to Rule 457(n), no
additional registration fee is payable with respect to the
guarantees.
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(4)
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Previously paid in connection with
the original filing of the Registration Statement.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further Amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
SCHEDULE A
Additional
Registrants
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Primary
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Standard
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State or Other
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Industrial
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Jurisdiction of
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Classification
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I.R.S. Employer
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Address, including Zip Code and Telephone Number,
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Exact Name of Registrant as Specified
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Incorporation or
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Code
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Identification
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including Area Code, of Registrants Principal
Executive
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in its Charter
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Organization
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Number
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Number
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Offices
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JDA Software, Inc.
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Arizona
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7371
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86-0673401
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14400 North 87th Street, Scottsdale, Arizona 85260, Tel: (480)
308-3000
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JDA Worldwide, Inc.
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Arizona
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7371
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86-0747958
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14400 North 87th Street, Scottsdale, Arizona 85260, Tel: (480)
308-3000
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Manugistics Group, Inc.
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Delaware
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7371
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52-1469385
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9715 Key West Ave., Rockville, MD 20850
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Manugistics, Inc.
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Delaware
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7371
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52-0891791
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9715 Key West Ave., Rockville, MD 20850
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Manugistics Holdings Delaware II, Inc.
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Delaware
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7371
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45-0465630
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9715 Key West Ave., Rockville, MD 20850
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i2 Technologies, Inc.
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Delaware
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7371
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75-2294945
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11701 Luna Road, Dallas, Texas 75234
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JDA Technologies US, Inc.
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Nevada
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7371
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91-2126250
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11701 Luna Road, Dallas, Texas 75234
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The information
contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not a solicitation of an offer to buy these
securities in any state or other jurisdiction where the offer or
sale is not permitted.
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SUBJECT TO COMPLETION, DATED
NOVEMBER 3, 2010
PROSPECTUS
JDA SOFTWARE GROUP,
INC.
Exchange
Offer for 8.00% Senior Notes due 2014
We hereby offer, upon the terms and subject to the conditions
set forth in this prospectus and the accompanying letter of
transmittal (which together constitute the exchange
offer), to exchange up to $275,000,000 aggregate principal
amount of our 8.00% Senior Notes due 2014, and the guarantees
thereof, which have been registered under the Securities Act of
1933, as amended, which we refer to as the exchange notes, for
an equal aggregate principal amount of our currently outstanding
8.00% Senior Notes due 2014, and the guarantees thereof, that
were issued on December 10, 2009, which we refer to as the
old notes. We refer to the old notes and the exchange notes
collectively as the notes.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME,
ON ,
2010, UNLESS EXTENDED.
The material terms of the exchange offer are summarized below
and are more fully described in this prospectus.
MATERIAL
TERMS OF THE EXCHANGE OFFER
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The terms of the exchange notes are substantially identical to
those of the old notes except that the exchange notes are
registered under the Securities Act of 1933, as amended, and the
transfer restrictions, registration rights and rights to special
interest applicable to the old notes do not apply to the
exchange notes.
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We will exchange all old notes that are validly tendered and not
withdrawn prior to the expiration of the exchange offer.
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You may withdraw tenders of old notes at any time prior to the
expiration of the exchange offer.
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We will not receive any proceeds from the exchange offer.
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The exchange of notes should not be a taxable event for U.S.
federal income tax purposes.
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There is no public market for the exchange notes. We have not
applied, and do not intend to apply, for listing of the exchange
notes on any national securities exchange or automated quotation
system.
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See
Risk Factors
beginning on page 9
of this prospectus for a discussion of certain risks that you
should consider carefully before participating in the exchange
offer.
Each broker-dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it
will deliver a prospectus in connection with any resale of the
exchange notes. This prospectus, as amended or supplemented, may
be used by a broker-dealer in connection with resales of
exchange notes received in exchange for old notes that were
acquired by such broker-dealer as a result of market-making or
other trading activities. We have agreed that for a period of
180 days after the expiration of the exchange offer, we
will make this prospectus available to any broker-dealer for use
in connection with any such resales. See Plan of
Distribution.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of
this prospectus
is ,
2010
TABLE OF
CONTENTS
We have not authorized anyone to give you any information or
to make any representations about us or the exchange offer other
than those contained in this prospectus. If you are given any
information or representations about these matters that is not
discussed in this prospectus, you must not rely on that
information. This prospectus is not an offer to sell or a
solicitation of an offer to buy securities anywhere or to anyone
where or to whom we are not permitted to offer or sell
securities under applicable law. The delivery of this prospectus
does not, under any circumstances, mean that there has not been
a change in our affairs since the date of this prospectus.
Subject to our obligation to amend or supplement this prospectus
as required by law and the rules of the Securities and Exchange
Commission, the information contained in this prospectus is
correct only as of the date of this prospectus, regardless of
the time of delivery of this prospectus or any sale of these
securities.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the Securities and Exchange
Commission (the SEC) under the Securities Exchange
Act of 1934, as amended (the Exchange Act). We have
also filed with the SEC a registration statement on
Form S-4,
which you can access on the SECs Internet site at
http://www.sec.gov,
to register the exchange notes. This prospectus, which forms
part of the registration statement, does not contain all of the
information included in that registration statement. For further
information about us and the exchange notes offered in this
prospectus, you should refer to the registration statement and
its exhibits. You may read and copy any materials we file with
the SEC at the Public Reference Room of the SEC at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for more information about the operation of the Public Reference
Room. The SEC also maintains an Internet site at
http://www.sec.gov
that contains reports, proxy and information statements, and
other information regarding issuers that file electronically
with the SEC. You may also obtain certain of these documents on
our Internet site at
http://www.jda.com.
Our web site and the information contained on that site, or
connected to that site, are not incorporated into and are not a
part of this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
This prospectus incorporates by reference important business and
financial information about our company that is not included in
or delivered with this document. The information incorporated by
reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update
and supersede this information. Any statement contained in this
prospectus or in any document incorporated or deemed to be
incorporated by reference into this prospectus that is modified
or superseded by subsequently filed materials shall not be
deemed, except as so modified or superseded, to constitute a
part of this prospectus. We incorporate by reference the
documents set forth below that we have previously filed with the
SEC, including all exhibits thereto, and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act from now until the termination of the
exchange offer (excluding any Current Reports on
Form 8-K
to the extent disclosure is furnished and not filed):
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our Annual Report on
Form 10-K
for the year ended December 31, 2009;
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our Definitive Proxy Statement on Schedule 14A related to
our Annual Meeting of Shareholders, filed on April 9, 2010
(with respect to information contained in such Definitive Proxy
Statement that is incorporated into Part III of our Annual
Report on
Form 10-K
for the year ended December 31, 2009 only);
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our Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2010 and June 30,
2010; and
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our Current Reports on
Form 8-K
filed on January 25, 2010, January 28, 2010,
February 11, 2010, April 27, 2010, April 28,
2010, June 8, 2010, June 18, 2010, July 6, 2010,
October 1, 2010, November 2, 2010 and November 3,
2010.
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You can obtain any of the documents incorporated by reference
into this prospectus from the SECs web site at the address
described above. You may also request a copy of these filings,
at no cost, by writing or telephoning to the address and
telephone set forth below. We will provide, without charge, upon
written or oral request, copies of any or all of the documents
incorporated by reference into this prospectus (excluding
exhibits to such documents unless such exhibits are specifically
incorporated by reference therein). You should direct requests
for documents to: JDA Software Group, Investor Relations, 14400
North 87th Street, Scottsdale, Arizona 85260, telephone number
(480) 308-3000.
In order to obtain timely delivery of any copies of filings
requested, please write or call us no later
than ,
2010, which is five business days before the expiration date of
the exchange offer.
i
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements and assumptions contained, or incorporated by
reference, in this prospectus constitute forward-looking
statements made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. These
forward-looking statements relate to outlooks or expectations
for earnings, revenues, expenses, asset quality, or other future
financial or business performance, strategies, or expectations,
or the impact of legal, regulatory, or supervisory matters on
business, results of operations, or financial condition.
Specifically, forward looking statements may include:
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statements relating to the benefits of our acquisition of i2
Technologies, Inc. (i2), including anticipated
synergies and cost savings estimated to result from the
acquisition;
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statements relating to future business prospects, revenue,
income, and financial condition; and
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statements preceded by, followed by or that include the words
estimate, plan, project,
forecast, intend, expect,
anticipate, believe, seek,
target, or similar expressions.
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These statements reflect management judgments based on currently
available information and involve a number of risks and
uncertainties that could cause actual results to differ
materially from those in the forward-looking statements. Future
performance cannot be ensured. Actual results may differ
materially from those in the forward-looking statements. Some
factors that could cause actual results to differ include:
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the unprecedented volatility in the global economy;
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the risk that we do not realize the anticipated benefits of our
acquisition of i2, including potential synergies, due to
challenges associated with integrating the companies and other
factors;
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the risk that unexpected costs will be incurred as a result of
our acquisition of i2;
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changes in general economic and market conditions; and
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other risks referenced from time to time in our filings with the
SEC and those factors listed or incorporated by reference into
this prospectus under Risk Factors beginning on
page 9.
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You are cautioned not to place undue reliance on any
forward-looking statements, which speak only as of the date of
this prospectus, or in the case of a document incorporated by
reference, as of the date of that document. Except as required
by law, we undertake no obligation to publicly update or release
any revisions to these forward-looking statements to reflect any
events or circumstances after the date hereof or to reflect the
occurrence of unanticipated events.
ii
SUMMARY
The following summary is qualified in its entirety by the
more detailed information included elsewhere or incorporated by
reference in this prospectus. Because this is a summary, it may
not contain all of the information that may be important to you.
You should read the entire prospectus carefully, paying
particular attention to the matters discussed under the caption
Risk Factors, as well as the information
incorporated by reference (including our consolidated financial
statements and accompanying notes), request from us all
additional public information you wish to review relating to us
and complete your own examination of us and the terms of the
exchange offer and the exchange notes before making an
investment decision. Unless otherwise indicated,
JDA, JDA Software, the
Company, we, us, our
and words of similar import refer to JDA Software Group, Inc.
and its subsidiaries on a consolidated basis.
JDA is a leading provider of sophisticated enterprise software
solutions designed to enable planning, optimization and
execution of merchandising and supply chain processes for
manufacturers, wholesalers and distributors, and retailers, as
well as government and aerospace defense contractors.
Additionally, JDA provides pricing, yield management and demand
management software solutions for travel, transportation,
hospitality and media organizations. We believe we have the
broadest and deepest suite of software products and services for
supply chain management. Our software offerings are highly
tailored to industry-specific needs and are integrated to
provide a complete set of solutions for our customers. These
attributes, we believe, position us well against both broad
enterprise resource planning competitors and point solution
providers, and promote customer loyalty.
On January 28, 2010, JDA completed the acquisition of i2
Technologies, Inc. (i2) for approximately
$600.0 million, which included cash consideration of
approximately $432.0 million and the issuance of
approximately 6.2 million shares of our common stock with
an acquisition date fair value of approximately
$168.0 million, or $26.88 per share, determined on the
basis of the closing market price of our common stock on the
date of acquisition.
For the year ended December 31, 2009 and the six months
ended June 30, 2010, JDA had revenues of
$385.8 million and $290.0 million, respectively, and
net income of $26.3 million and $3.6 million,
respectively.
JDAs headquarters are located at 14400 North 87th Street,
Scottsdale, Arizona 85260, and its telephone number
(480) 308-3000.
For more information regarding JDA, see Where You Can Find
More Information on page i.
1
The
Exchange Offer
The following is a brief summary of certain material terms of
the exchange offer. For a more complete description of the terms
of the exchange offer, see The Exchange Offer in
this prospectus.
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Background
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On December 10, 2009, we issued $275,000,000 aggregate
principal amount of our 8.00% Senior Notes due 2014, or the old
notes, to Goldman, Sachs & Co. and Wells Fargo Securities,
LLC, as the initial purchasers, in a transaction exempt from the
registration requirements of the Securities Act. The initial
purchasers then sold the old notes to qualified institutional
buyers in reliance on Rule 144A and to persons outside the
United States in reliance on Regulation S under the
Securities Act. Because the old notes have been sold in reliance
on exemptions from registration, the old notes are subject to
transfer restrictions. In connection with the issuance of the
old notes, we entered into a registration rights agreement with
the initial purchasers pursuant to which we agreed, among other
things, to deliver this prospectus and to complete an exchange
offer for the old notes.
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The Exchange Offer
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We are offering to exchange up to $275,000,000 aggregate
principal amount of our 8.00% Senior Notes due 2014, or the
exchange notes, for an equal aggregate principal amount of old
notes. The terms of the exchange notes are identical in all
material respects to the terms of the old notes, except that the
exchange notes have been registered under the Securities Act and
do not contain transfer restrictions, registration rights or
special interest provisions. You should read the discussion set
forth under Description of the Exchange Notes for
further information regarding the exchange notes. In order to be
exchanged, an old note must be properly tendered and accepted.
All old notes that are validly tendered and not withdrawn will
be exchanged. We will issue and deliver the exchange notes
promptly after the expiration of the exchange offer.
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Resale of Exchange Notes
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Based on interpretations by the SECs Staff, as detailed in
a series of no-action letters issued to third parties unrelated
to us, we believe that the exchange notes issued in the exchange
offer may be offered for resale, resold or otherwise transferred
by you without compliance with the registration and prospectus
delivery requirements of the Securities Act as long as:
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you, or the person or entity receiving the exchange notes,
acquires the exchange notes in the ordinary course of business;
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neither you nor any such person or entity receiving the exchange
notes is engaging in or intends to engage in a distribution of
the exchange notes within the meaning of the federal securities
laws;
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neither you nor any such person or entity receiving the exchange
notes has an arrangement or understanding with any person or
entity to participate in any distribution of the exchange notes;
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neither you nor any such person or entity receiving the exchange
notes is an affiliate of JDA Software Group, Inc.,
as that term is defined in Rule 405 under the Securities
Act; and
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neither you nor any such person or entity receiving the exchange
notes is prohibited by any law or policy of the SEC from
participating in the exchange offer.
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We have not submitted a no-action letter to the SEC and there
can be no assurance that the SEC would make a similar
determination with respect to this exchange offer. If you do not
meet the conditions described above, you must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with the resale of the exchange
notes. If you fail to comply with these requirements you may
incur liabilities under the Securities Act, and we will not
indemnify you for such liabilities.
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Expiration Date
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5:00 p.m., New York City time,
on ,
2010, unless, in our sole discretion, we extend or terminate the
exchange offer.
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Withdrawal Rights
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You may withdraw tendered old notes at any time prior to
5:00 p.m., New York City time, on the expiration date. See
The Exchange OfferTerms of the Exchange Offer.
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Conditions to the Exchange Offer
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The exchange offer is subject to certain customary conditions,
including our determination that the exchange offer does not
violate any law, statute, rule, regulation or interpretation by
the Staff of the SEC or any regulatory authority or other
foreign, federal, state or local government agency or court of
competent jurisdiction, some of which may be waived by us. See
The Exchange OfferConditions to the Exchange
Offer.
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Procedures for Tendering Old Notes
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You may tender your old notes by instructing your broker or bank
where you keep the old notes to tender them for you. In some
cases, you may be asked to submit the blue-colored letter of
transmittal that may accompany this prospectus. By tendering
your old notes, you will represent to us, among other things,
(1) that you are, or the person or entity receiving the
exchange notes, is acquiring the exchange notes in the ordinary
course of business, (2) that neither you nor any such other
person or entity has any arrangement or understanding with any
person to participate in the distribution of the exchange notes
within the meaning of the Securities Act and (3) that
neither you nor any such other person or entity is our affiliate
within the meaning of Rule 405 under the Securities Act.
Your old notes must be tendered in integral multiples of $1,000.
Exchange notes will be issued in minimum denominations of $2,000
and integral multiples of $1,000 in excess thereof.
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A timely confirmation of book-entry transfer of your old notes
into the exchange agents account at The Depository
Trust Company, or DTC, according to the procedures
described in this prospectus under The Exchange
Offer, must be received by the exchange agent before
5:00 p.m., New York City time, on the expiration date.
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3
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Consequences of Failure to Exchange
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Any old notes not accepted for exchange for any reason will be
credited to an account maintained at DTC promptly after the
expiration or termination of the exchange offer. Old notes that
are not tendered, or that are tendered but not accepted, will be
subject to their existing transfer restrictions. We will have no
further obligation, except under limited circumstances, to
provide for registration under the Securities Act of the old
notes. The liquidity of the old notes could be adversely
affected by the exchange offer. See Risk
FactorsRisks Related to Retention of the Old NotesIf
you do not exchange your old notes, your old notes will continue
to be subject to the existing transfer restrictions and you may
be unable to sell your old notes.
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Taxation
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The exchange of old notes for exchange notes by tendering
holders should not be a taxable event for U.S. federal income
tax purposes. For more details, see Material United States
Federal Income Tax Consequences.
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Use of Proceeds
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We will not receive any proceeds from the issuance of the
exchange notes in the exchange offer. For more details, see
Use of Proceeds.
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Exchange Agent
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U.S. Bank National Association is serving as the exchange agent
in connection with the exchange offer. The address, telephone
number and facsimile number of the exchange agent are listed
under The Exchange OfferExchange Agent.
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Risk Factors
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An investment in the exchange notes involves substantial risk.
See Risk Factors for a description of certain of the
risks you should consider before investing in the exchange notes.
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4
Terms of
the Exchange Notes
The following is a brief summary of certain material terms of
the exchange notes. For more complete information about the
exchange notes, see Description of the Exchange
Notes in this prospectus.
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Issuer
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JDA Software Group, Inc.
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Notes Offered
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$275 million in aggregate principal amount of 8.00% Senior
Notes due 2014.
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Maturity Date
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December 15, 2014.
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Interest Rate
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We will pay interest on the exchange notes at an annual interest
rate of 8.00%.
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Interest Payment Dates
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Interest on the exchange notes will be payable on June 15 and
December 15 of each year, beginning on December 15, 2010.
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Guarantees
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JDAs obligations under the exchange notes will be fully
and unconditionally guaranteed on a senior basis, jointly and
severally by certain of our current and future domestic
restricted subsidiaries. Certain of our subsidiaries will not be
guarantors of the exchange notes. As of June 30, 2010, the
non-guarantor subsidiaries held approximately $133 million
of our total assets of approximately $1.1 billion and had
liabilities of approximately $68 million.
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Ranking
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The exchange notes and the guarantees will be unsecured senior
indebtedness. Accordingly, they will be:
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pari passu in right of payment with all of the JDAs and
the guarantors existing and future senior indebtedness;
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senior in right of payment to all of the JDAs and the
guarantors existing and future subordinated indebtedness;
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effectively subordinated to all of the JDAs and the
guarantors secured indebtedness, to the extent of the
value of the assets securing such indebtedness; and
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structurally subordinated to all obligations of our
non-guarantor subsidiaries.
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As of June 30, 2010, after giving effect to the completion
of the offering of the old notes and the application of the net
proceeds thereof, we had $275 million of long-term
indebtedness outstanding, none of which was secured indebtedness.
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Optional Redemption
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On or after December 15, 2012, we may redeem all or a part
of the exchange notes at the redemption prices set forth under
Description of Exchange Notes Optional
Redemption, plus accrued and unpaid interest and
additional interest, if any, to the redemption date.
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In addition, at any time prior to December 15, 2012, we
may, on one or more occasions, redeem some or all of the
exchange notes at a redemption price equal to 100% of the
principal amount of the exchange notes redeemed, plus accrued
and unpaid interest and additional interest, if any, to the
redemption date and a make-whole premium.
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At any time prior to December 15, 2012, we may also redeem
up to 35% of the aggregate principal amount of the exchange
notes, with the proceeds of certain qualified equity offerings
at a redemption price of 108.0% of the principal amount thereof
plus accrued and unpaid interest and additional interest, if
any, to the redemption date.
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Change of Control
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If we experience certain change of control events, we must offer
to repurchase the exchange notes at a repurchase price equal to
101% of the principal amount of the exchange notes repurchased,
plus accrued and unpaid interest and additional interest, if
any, to the applicable repurchase date. See Description of
Exchange Notes Repurchase at the Option of
Holders Change of Control.
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Asset Sale Offer
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Under certain circumstances, if we sell assets and do not
reinvest the proceeds therefrom as specified in the indenture,
we must offer to repurchase the exchange notes at a repurchase
price equal to 100% of the principal amount of the exchange
notes repurchased, plus accrued and unpaid interest and
additional interest, if any, to the applicable repurchase date.
See Description of Exchange Notes Repurchase
at the Option of Holders Asset Sales.
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Restrictive Covenants
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The indenture governing the exchange notes contains certain
covenants limiting our ability and the ability of our restricted
subsidiaries to, under certain circumstances:
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pay dividends, make investments or make other restricted
payments;
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incur additional indebtedness or issue disqualified stock or
preferred stock;
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create liens;
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permit consensual encumbrances or restrictions on our restricted
subsidiaries ability to pay dividends or make certain
other payments to us;
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consolidate, merge, sell or otherwise dispose of all or
substantially all of our or their assets;
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enter into transactions with affiliates; and
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designate subsidiaries as unrestricted.
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These covenants will be subject to a number of important
limitations and exceptions. See Description of Exchange
Notes Certain Covenants.
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DTC Eligibility
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The exchange notes will be issued in book-entry form and will be
represented by a permanent global security deposited with a
custodian for and registered in the name of the nominee of DTC
in New York, New York. Beneficial interests in the global
security will be shown on, and transfers will be effected only
through, records maintained by DTC and its direct and indirect
participants and any such interests may not be exchanged for
certificated securities, except in limited circumstances. See
Description of the Exchange NotesBook-Entry Delivery
and Form.
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Absence of Established Markets for the Exchange Notes
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The exchange notes are a new issue of securities, and currently
there is no market for the exchange notes. We do not intend to
apply for the exchange notes to be listed on any securities
exchange, or to arrange for any quotation system to quote them.
Accordingly, we cannot assure you that liquid markets will
develop for the exchange notes.
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Risk Factors
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An investment in the exchange notes involves substantial risk.
See Risk Factors for a description of certain of the
risks you should consider before investing in the exchange notes.
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RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited consolidated ratio
of earnings to fixed charges for the periods shown:
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Year ended
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Six Months ended
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Dec. 31,
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Dec. 31,
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Dec. 31,
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Dec. 31,
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Dec. 31,
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June 30,
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2005
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2006
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2007
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2008
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2009
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2010
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Ratio of earnings to fixed charges (a)
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3.22
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1.03
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3.56
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1.40
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9.13
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1.34
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(a)
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We compute the ratio of earnings to fixed charges by dividing
(i) earnings (loss), which consists of net income from
continuing operations before income taxes plus undistributed
earnings in equity investments, by (ii) fixed charges,
which consist of interest expensed, plus amortized premiums,
discounts and capitalized expenses related to indebtedness, and
an estimate of the interest within rental expense.
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8
RISK
FACTORS
In considering whether to purchase the exchange notes offered
hereby, you should understand the high degree of risk involved.
You should carefully consider the risk factors and other
information contained in this prospectus and the risk factors
and other information incorporated by reference under the
caption Item 1A. Risk Factors in our annual
report on
Form 10-K
for the year ended December 31, 2009, as well as the other
information incorporated by reference into this prospectus as
such risk factors and other information may be updated from time
to time by our subsequent reports and other filings under the
Exchange Act. See Incorporation of Certain Information By
Reference. The risks below are not the only risks we face.
Additional risks and uncertainties not currently known to us or
that we currently deem to be immaterial also may materially
adversely affect our business, financial condition or results of
operations.
Risks
Related to Our Business
We may
not remain profitable.
Our ability to sustain profitability will depend, in part, on
our ability to:
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attract and retain an adequate client base;
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manage effectively a larger and more global business with
larger, complete tier one projects;
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react to changes, including technological changes, in the
markets we target or operate in;
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deploy our services in additional markets or industry segments;
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respond to competitive developments and challenges;
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attract and retain experienced and talented personnel; and
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establish strategic business relationships.
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We may not be able to do any of these successfully, and our
failure to do so is likely to have a negative impact on our
operating results and cash flows, which could affect our ability
to make payments on the exchange notes.
We
have a substantial amount of debt, which could impact our
ability to obtain future financing or pursue our growth
strategy.
After the acquisition of i2, we have $275 million of
long-term debt. Cash flow from operations was $9.6 million
in first half 2010 and includes the impact of i2 from the
January 28, 2010 (date of acquisition) through
June 30, 2010. Cash flow from operations, without the cash
flow from i2, was $60.5 million in first half 2009, and
$96.5 million and $47.1 million in the years ended
December 31, 2009 and 2008, respectively. Our indebtedness
could have significant adverse effects on our business,
including the following:
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we must use a substantial portion of our cash flow from
operations to pay interest on our indebtedness, which will
reduce the funds available to us for operations and other
purposes;
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our ability to obtain additional financing for working capital,
capital expenditures, acquisitions or general corporate purposes
may be impaired;
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our high level of indebtedness could place us at a competitive
disadvantage compared to our competitors that may have
proportionately less debt;
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our flexibility in planning for, or reacting to, changes in our
business and the industry in which we operate may be limited;
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our high level of indebtedness may make us more vulnerable to
economic downturns and adverse developments in our
business; and
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our ability to fund a change of control offer may be limited.
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The instruments governing the notes contain, and the instruments
governing any indebtedness we may incur in the future may
contain, restrictive covenants that limit our ability to engage
in activities that may be in our long-term best interests. Our
failure to comply with these covenants could result in an event
of default which, if not cured or waived, could result in the
acceleration of all or a portion of our outstanding indebtedness.
Payments
on our indebtedness will require a significant amount of
cash.
As a result of financial, business, economic and other factors,
many of which we cannot control, our business may not generate
sufficient cash flow from operations in the future and our
currently anticipated growth in revenue and cash flow may not be
realized, either or both of which could result in our being
unable to repay indebtedness, including our outstanding notes,
or to fund other liquidity needs. If we do not have sufficient
cash resources in the future, we may be required to refinance
all or part of our then existing debt, sell assets or borrow
more money. There can be no assurance that we will be able to
accomplish any of these alternatives on terms acceptable to us
or at all. In addition, the terms of existing or future debt
agreements may restrict us from adopting any of these
alternatives.
We may
incur substantial additional indebtedness that could further
exacerbate the risks associated with our
indebtedness.
We may incur substantial additional indebtedness in the future.
Although the indenture governing our outstanding notes contains
restrictions on our incurrence of additional debt, these
restrictions are subject to a number of qualifications and
exceptions, and we could incur substantial additional secured or
unsecured indebtedness, which may include a credit facility that
may include financial ratio requirements and covenants. If we
incur additional debt, the risks related to our leverage and
debt service requirements would increase.
We may
not receive significant revenues from our current research and
development efforts, which may limit our business from
developing in ways that we currently anticipate.
Developing and localizing software is expensive and the
investment in product development often involves a long payback
cycle. We have made and expect to continue making significant
investments in software research and development and related
product opportunities. If product life cycles shorten or key
technologies upon which we depend change rapidly, we may need to
make high levels of expenditures for research and development
that could adversely affect our operating results if not offset
by corresponding revenue increases. We believe that we must
continue to dedicate a significant amount of resources to our
research and development efforts to maintain our competitive
position. However, it is difficult to estimate when, if ever, we
will receive significant revenues from these investments.
We may
misjudge when software sales will be realized, which may
materially reduce our revenue and cash flow and adversely affect
our business.
Software license revenues in any quarter depend substantially
upon contracts signed and the related shipment of software in
that quarter. Because of the timing of our sales, we typically
recognize the substantial majority of our software license
revenues in the last weeks or days of the quarter. In addition,
it is difficult to forecast the timing of large individual
software license sales with a high degree of certainty due to
the extended length of the sales cycle and the generally more
complex contractual terms that may be associated with such
licenses that could result in the deferral of some or all of the
revenue to future periods. Our customers and potential
customers, especially for large individual software license
sales, are increasingly requiring that their senior executives,
board of directors and significant equity investors approve such
purchases without the benefit of the direct input from our sales
representatives. As a result, we may have less visibility into
the progression of the selection and approval process throughout
our sales cycles, which in turn
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makes it more difficult to predict the quarter in which
individual sales will occur, especially in large sales
opportunities.
We are also at risk of having pending transactions abruptly
terminated if the boards of directors or executive management of
our customers decide to withdraw funding from information
technology projects as a result of a deep or prolonged global
economic downturn and credit crisis. If this type of behavior
becomes commonplace among existing or potential customers then
we may face a significant reduction in new software sales. We
have seen an increasing number of our prospects indicate to us
that they can sign agreements prior to the end of our quarter,
when in fact their approval process precludes them from being
able to complete the transaction until after the end of our
quarter. In addition, because of the current economic downturn,
we may need to increase our use of alternate licensing models
that reduce the amount of software revenue we recognize upon
shipment of our software.
Each of these circumstances adds to the difficulty of accurately
forecasting the timing of deals. We expect to experience
continued difficulty in accurately forecasting the timing of
deals. If we receive any significant cancellation or deferral of
customer orders, or if we are unable to conclude license
negotiations by the end of a fiscal quarter, our quarterly
operating results will be lower than anticipated.
In addition to the above, we may be unable to recognize revenues
associated with certain projects assumed in the acquisition of
i2 in accordance with our expectations. i2 historically
recognized a significant portion of revenues from sales of
software solutions and development projects over time using the
percentage of completion method of contract accounting. Failure
to complete project phases in accordance with the overall
project plan can create variability in our expected revenue
streams if we are not able to recognize revenues related to
particular projects because of delays in development.
We may
face liability if our products are defective or if we make
errors implementing our products.
Our software products are highly complex and sophisticated. As a
result, they could contain design defects, software errors or
security problems that are difficult to detect and correct. In
particular, it is common for complex software programs such as
ours to contain undetected errors, particularly in early
versions of our products. Errors are discovered only after the
product has been implemented and used over time with different
computer systems and in a variety of applications and
environments. Despite extensive testing, we have in the past
discovered certain defects or errors in our products or custom
configurations only after our software products have been used
by many clients.
In addition, implementation of our products may involve
customer-specific configuration by third parties or us, and may
involve integration with systems developed by third parties. Our
clients may occasionally experience difficulties integrating our
products with other hardware or software in their particular
environment that are unrelated to defects in our products. Such
defects, errors or difficulties may cause future delays in
product introductions, result in increased costs and diversion
of development resources, require design modifications or impair
customer satisfaction with our products. If clients experience
significant problems with implementation of our products or are
otherwise dissatisfied with their functionality or performance,
or if our products fail to achieve market acceptance for any
reason, our market reputation could suffer, and we could be
subject to claims for significant damages. There can be no
assurances that the contractual provisions in our customer
agreements that limit our liability and exclude consequential
damages will be enforced. Any such damages claim could impair
our market reputation and could have a material adverse affect
on our business, operating results and financial condition.
We may
have difficulty implementing our software products, which would
harm our business and relations with customers.
Our software products are complex and perform or directly affect
mission-critical functions across many different functional and
geographic areas of the enterprise. Consequently, implementation
of our software products can be a lengthy process, and
commitment of resources by our clients is subject to a number
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of significant risks over which we have little or no control.
The implementation time for certain of our applications can be
longer and more complicated than our other applications as they
typically:
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involve more significant integration efforts in order to
complete implementation;
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require the execution of implementation procedures in multiple
layers of software;
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offer a customer more deployment options and other configuration
choices;
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require more training; and
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may involve third party integrators to change business processes
concurrent with the implementation of the software.
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Delays in the implementations of any of our software products,
whether by our business partners or by us, may result in client
dissatisfaction, disputes with our customers, or damage to our
reputation or cancellation of larger projects. With the i2
acquisition, we have increased the number of large, complex
projects with global tier one customers. Cancellation of a
large, global implementation project could have a material
adverse affect on our operating results.
Our
operating results may be adversely affected as a result of our
failure to meet contractual obligations under fixed-price
contracts within our estimated cost structure.
A portion of our consulting services revenues are derived under
fixed price arrangements that require us to provide identified
deliverables for a fixed fee. With the acquisition of i2, the
percentage of consulting services revenues derived under fixed
price arrangements may increase. Our failure to meet our
contractual obligations under fixed price contracts within our
estimated cost structure may result in our having to record the
cost related to the performance of services in the period that
the services were rendered, but delay the timing of revenue
recognition to a future period in which the obligations are met,
which may cause our operating results to suffer.
Litigation
Could Harm Our Business.
We may be subject to legal proceedings and claims involving
customer, stockholder, consumer, competition and other issues on
a global basis. As described in Item 1,
Note 8 Legal Proceedings in Part I
and Item 1 Legal Proceedings in
Part II of our
Form 10-Q
for the quarter ended June 30, 2010, we are currently
engaged in a number of legal proceedings, including litigation
with Dillards, Oracle and a group of i2s
shareholders. These legal proceedings are subject to inherent
uncertainties, and unfavorable rulings could occur and could
have a material adverse effect on our business, financial
position, results of operations or cash flows.
We may
have difficulty developing our new managed services offering,
which could reduce our future revenue growth
opportunities.
We have limited experience operating our applications for our
customers under our Managed Services offering, either on a
hosted or remote basis. We began these services in late 2009 and
through June 30, 2010 they represented a very small part of
our revenues. We have hired management personnel with
significant expertise in operating a managed services business
and we have begun to make capital expenditures for this
business. We may encounter difficulties developing our Managed
Services into a mature services offering, or the rate of
adoption by our customers may be slower than anticipated. If our
Managed Services business does not grow or operate as expected,
it could divert management resources, harm our strategy and
reduce opportunities for future revenue growth.
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The
enforcement and protection of our intellectual property rights
may be expensive and could divert our valuable
resources.
We rely primarily on patent, copyright and trademark laws, as
well as nondisclosure and confidentiality agreements and other
methods, to protect our proprietary information, technologies
and processes. Policing unauthorized use of our products and
technologies is difficult and time-consuming. Unauthorized
parties may try to copy or reverse engineer portions of our
products, circumvent our security devices or otherwise obtain
and use our intellectual property. We cannot be certain that the
steps we have taken will prevent the misappropriation or
unauthorized use of our proprietary information and
technologies, particularly in foreign countries where the laws
may not protect our proprietary intellectual property rights as
fully or as readily as United States laws. We cannot be certain
that the laws and policies of any country, including the United
States, or the practices of any of the standards bodies, foreign
or domestic, with respect to intellectual property enforcement
or licensing will not be changed in a way detrimental to our
licensing program or to the sale or use of our products or
technology.
We may need to litigate to enforce our intellectual property
rights, protect our trade secrets or determine the validity and
scope of proprietary rights of others. As a result of any such
litigation, we could lose our ability to enforce one or more
patents or incur substantial unexpected operating costs. Any
action we take to enforce our intellectual property rights could
be costly and could absorb significant management time and
attention, and result in counterclaims, which, in turn, could
negatively impact our operating results. Our patent infringement
lawsuit against Oracle, originally brought by i2 against Oracle
alleging the infringement by Oracle of certain i2 patents, and
Oracles corresponding patent infringement counterclaim
against us is an example of such intellectual property
litigation. In addition, failure to protect our trademark rights
could impair our brand identity.
Third
parties may claim we infringe their intellectual property
rights, which would result in an increase in litigation and
other related costs.
We periodically receive notices or claims from others that we
are infringing upon their intellectual property rights,
especially patent rights. We expect the number of such claims
will increase as the functionality of products overlap and the
volume of issued software patents continues to increase.
Responding to any infringement claim, regardless of its
validity, could:
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be time-consuming, costly
and/or
result in litigation;
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divert managements time and attention from developing our
business;
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require us to pay monetary damages or involve settlement
payments, either of which could be significant;
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require us to enter into royalty and licensing agreements that
we would not normally find acceptable;
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require us to stop selling or to redesign certain of our
products; or
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require us to satisfy indemnification obligations to our
customers.
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If a successful claim is made against us and we fail to develop
or license a substitute technology, our business, results of
operations, financial condition or cash flows could be adversely
affected.
If we
lose access to critical third-party software or technology, our
costs could increase and the introduction of new products and
product enhancements could be delayed, potentially hurting our
competitive position.
We license and integrate technology from third parties in
certain of our software products. Our third-party licenses
generally require us to pay royalties and fulfill
confidentiality obligations. If we are unable to continue to
license any of this third party software, or if the third party
licensors do not adequately maintain or update their products,
we would likely face delays in the releases of our software
until equivalent
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technology can be identified, licensed or developed, and
integrated into our software products. These delays, if they
occur, could harm our business, operating results and financial
condition. It is also possible that intellectual property
acquired from third parties through acquisitions, mergers,
licenses, or otherwise obtained may not have been adequately
protected, or infringes another parties intellectual property
rights.
We may
face difficulties in our highly competitive markets, which may
make it difficult to attract and retain clients and grow
revenues.
The supply chain software market continues to consolidate and
this has resulted in larger, new competitors with significantly
greater financial and marketing resources and more numerous
technical resources than we possess. This could create a
significant competitive advantage for our competitors and
negatively impact our business. It is difficult to estimate what
long term effect these acquisitions will have on our competitive
environment. We have encountered competitive situations with
certain enterprise software vendors where, in order to encourage
customers to purchase licenses of their specific applications
and gain market share, we suspect they have also offered to
license at no charge certain of their retail
and/or
supply chain software applications that compete with our
solutions. If large competitors such as Oracle, SAP AG and other
large private companies are willing to license their retail,
supply chain
and/or
other
applications at no charge, it may result in a more difficult
competitive environment for our products. We cannot guarantee
that we will be able to compete successfully for customers or
acquisition targets against our current or future competitors,
or that competition will not have a material adverse effect on
our business, operating results and financial condition.
We encounter competitive products from a different set of
vendors in many of our primary product categories. We believe
that while our markets are subject to intense competition, the
number of competitors in many of our application markets has
decreased over the past five years. We believe the principal
competitive factors in our markets are feature and
functionality, the depth of planning and optimization provided
and available deployment models. We compete on the basis of the
reputation of our products, the performance and scalability of
our products, the quality of our customer base, our ability to
implement, our retail and supply chain industry expertise, our
lower total cost of ownership, technology platform and quality
of customer support across multiple regions for global customers.
The competitive markets in which we compete could put pressure
on us to reduce our prices. If our competitors offer deep
discounts on certain products, we may need to lower prices or
offer other favorable terms in order to compete successfully.
Any such changes would likely reduce margins and would adversely
affect our operating results. Our software license updates and
product support fees are generally priced as a percentage of our
new license fees. Our competitors may offer a lower percentage
pricing on product updates and support, which could put pressure
on us to further discount our new license prices. Any
broadly-based changes to our prices and pricing policies could
cause new software license and services revenues to decline or
be delayed as our sales force implements and our customers
adjust to the new pricing policies.
We have increased our off-shore resources through our Center of
Excellence located in Hyderabad, India (CoE). However, our
consulting services business model is currently largely based on
relatively high-cost on-shore resources and, although it has
started to increase, utilization of CoE consulting services
resources in the Hyderabad facility has been lower than planned.
We believe the primary reason for this
lower-than-expected
utilization may be due to slower internal adoption of our
planned mix of on-shore/off-shore services. Further, we face
competition from low-cost off-shore service providers and
smaller boutique consulting firms. This competition is expected
to continue and our on-shore hourly rates are much higher than
those offered by these competitors. As these competitors gain
more experience with our products, the quality gap between our
service offerings and theirs may diminish, resulting in
decreased revenues and profits from our consulting practice. In
addition, we face increased competition for services work from
ex-employees of JDA who offer services directly or through lower
cost boutique consulting firms. These competitive service
providers have taken business from JDA and while some are still
relatively small compared to our consulting services business,
if they grow successfully, it will be largely at our expense. We
continue to attempt to improve our competitive position by
further developing and
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increasing the utilization of our own offshore consulting
services group at our CoE facility in Hyderabad, and this should
be enhanced by the CoE facility in Bangalore that we obtained in
the i2 acquisition since it has been in operation for a longer
period of time; however, we cannot guarantee these efforts will
be successful or enhance our ability to compete.
There
are many risks associated with international operations, which
may negatively impact our overall business and
profitability.
International revenues represented approximately 42% of out
total revenues in first half of 2010 and 40% of our total
revenues in the three years ended December 31, 2009, 2008
and 2007, or 40%, 40% and 41% on a pro forma basis, after giving
effect to the acquisition of i2, and we expect to generate a
significant portion of our revenues from international sales in
the future.
Our international business operations are subject to risks
associated with international activities, including:
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currency fluctuations, the impact of which could significantly
increase as a result of:
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our continuing expansion of the CoE in India; and
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the acquisition of i2, as the majority of i2s
international expenses, including the compensation expense of
over 65% of its employees, will be denominated in currencies
other than the U.S. Dollar;
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higher operating costs due to the need to comply with local laws
or regulations;
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lower margins on consulting services;
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competing against low-cost service providers;
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unexpected changes in employment and other regulatory
requirements;
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tariffs and other trade barriers;
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costs and risks of adapting our products for use in foreign
countries;
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longer payment cycles in certain countries;
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potentially negative tax consequences;
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difficulties in staffing and managing geographically disparate
operations;
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greater difficulty in safeguarding intellectual property,
licensing and other trade restrictions;
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ability to negotiate and have enforced favorable contract
provisions;
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repatriation of earnings;
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the challenges of finding qualified management for our
international operations;
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general economic conditions in international markets; and
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developing and deploying the skills required to service our
broad set of product offerings across the markets we serve.
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We expect that an increasing portion of our international
software license, consulting services and maintenance services
revenues will be denominated in foreign currencies, subjecting
us to fluctuations in foreign currency exchange rates. If we
expand our international operations, exposures to gains and
losses on foreign currency transactions may increase. We use
derivative financial instruments, primarily forward exchange
contracts, to manage a majority of the foreign currency exchange
exposure associated with net short-term foreign denominated
assets and liabilities which exist as part of our ongoing
business operations, but we do not hedge ongoing or anticipated
revenues, costs and expenses, including the additional costs we
expect to
15
incur with the expansion of our CoE in India. We cannot
guarantee that any currency exchange strategy would be
successful in avoiding exchange-related losses.
If we
experience expansion delays or difficulties with our Center of
Excellence in India, we may not realize the cost savings and
margin increases that we anticipated.
We are continuing the expansion of our CoE facilities located in
Hyderabad and Bangalore, India. In order to take advantage of
cost efficiencies associated with Indias lower wage scale,
we expanded the CoE during 2008 beyond a research and
development center to include consulting services, customer
support and information technology resources. We believe that a
properly functioning CoE will be important in achieving desired
long-term operating results. Although we have not yet fully
utilized certain of the service capabilities of the CoE, we
believe progress is being made. We are satisfied with the
progress of our product development, information technology and
other administrative support functions at the CoE. We are also
beginning to gain leverage from the CoE in our consulting
services business, and we expect the overall share of consulting
services work performed by the CoE will continue to increase. We
also believe there are additional opportunities to further
leverage the CoE in our customer support organization. If we
encounter any delays in our efforts to increase the utilization
of our services resources at the CoE it, may have an overall
effect of reducing our anticipated consulting services margin
increases and negatively impacting our operating results.
Additional risks associated with our CoE strategy include, but
are not limited to:
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the
slower-than-expected
rate of internal adoption of our planned mix of
on-shore/off-shore services;
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significant expected increases in labor costs in India;
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increased risk of associate attrition due to the improvement of
the Indian economy and job market;
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terrorist activities in the region;
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inability to hire or retain sufficient personnel with the
necessary skill sets to meet our needs;
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economic, security and political conditions in India;
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inadequate facilities or communications infrastructure; and
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local law or regulatory issues.
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In addition, i2 conducted a large portion of its software
solutions development and services operations in Bangalore,
India and the distributed nature of its development and
consulting resources could create increased operational
challenges and complications for us based upon the above factors.
Economic,
political and market conditions can adversely affect our revenue
and profitability.
Our revenue and profitability depend on the overall demand for
our software and related services. Historically, events such as
terrorist attacks, natural catastrophes and contagious diseases
have created uncertainties in our markets and caused disruptions
in our sales cycles. A regional
and/or
global change in the economy or financial markets, such as the
current protracted global economic downturn, could result in
delay or cancellation of customer purchases. A downturn in the
economy may cause an increase in customer bankruptcy
reorganizations, liquidations and consolidations, which may
negatively impact our accounts receivables and expected future
revenues from such customers. Adverse conditions in credit
markets, reductions in consumer confidence and spending and the
fluctuating commodities
and/or
fuel
costs are examples of changes that have delayed or terminated
certain customer purchases. A further worsening or broadening or
protracted extension of these conditions would have a
significant negative impact on our operating results. In
addition to the potential negative impact of the economic
downturn on our software sales, customers are increasingly
seeking to reduce their maintenance fees or to avoid price
increases. This has resulted in elevated levels of maintenance
attrition in recent periods. A prolonged economic downturn may
16
increase our attrition rates, particularly if many of our
larger maintenance customers cease operations. Because
maintenance is our largest source of revenue, increases in our
attrition rates can have a significant adverse impact on our
operating results. Weak and uncertain economic conditions could
also impair our customers ability to pay for our products
or services. Any of these factors could adversely impact our
quarterly or annual operating results and our financial
condition.
We may
be unable to retain key personnel, which could materially impact
our ability to further develop our business.
While the rate of retention of our associates is high compared
to industry averages, our operations are dependent upon our
ability to attract and retain highly skilled associates and the
loss of certain key individuals to any of our competitors could
adversely impact our business. In addition, our performance
depends in large part on the continued performance of our
executive officers and other key employees, particularly the
performance and services of Hamish N. Brewer, our Chief
Executive Officer. Following our acquisition of i2, our
associates (including our associates who were former associates
of i2) may experience uncertainty as a result of integration
activities, which may adversely affect our ability to attract
and retain key personnel. We also must continue to attract new
talent and continue to properly motivate our other existing
associates and keep them focused on our strategies and goals,
which effort may be adversely affected as a result of the
uncertainty and difficulties with integrating i2 with JDA.
We do not have in place key person life insurance
policies on any of our employees. The loss of the services of
Mr. Brewer or other key executive officers or employees
without a successor in place, or any difficulties associated
with a successor, could negatively affect our financial
performance.
We may
have difficulty integrating future acquisitions, which would
reduce the anticipated benefits of these
transactions.
We intend to continually seek to identify and evaluate potential
acquisitions of complementary businesses, products and
technologies, including those that are significant in size and
scope. In pursuit of our strategy to acquire complementary
products, we have completed eleven acquisitions over the past
twelve years, including our acquisitions of i2 in January 2010
and Manugistics in July 2006. The risks we commonly encounter in
acquisitions include:
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if we incur significant debt to finance a future acquisition and
our combined business does not perform as expected, we may have
difficulty complying with debt covenants;
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if we use our stock to make a future acquisition, it will dilute
existing shareholders;
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we may have difficulty assimilating the operations and personnel
of any acquired company;
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the challenge and additional investment involved to integrate
new products and technologies into our sales and marketing
process;
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we may have difficulty effectively integrating any acquired
technologies or products with our current products and
technologies, particularly where such products reside on
different technology platforms, or overlap with our products;
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our ongoing business may be disrupted by transition and
integration issues;
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customer purchases and projects may become delayed until we
publish a combined product roadmap, and once we do publish the
roadmap it may disrupt additional purchases and projects;
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the costs and complexity of integrating the internal information
technology infrastructure of each acquired business with ours
may be greater than expected and require capital investments;
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we may not be able to retain key technical and managerial
personnel from an acquired business;
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we may be unable to achieve the financial and strategic goals
for any acquired and combined businesses;
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we may have difficulty in maintaining controls, procedures and
policies during the transition and integration period following
a future acquisition;
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our relationships with partner companies or third-party
providers of technology or products could be adversely affected;
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our relationships with employees and customers could be impaired;
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our due diligence process may fail to identify significant
issues with product quality, product architecture, legal or tax
contingencies, customer obligations and product development,
among other things;
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as successor we may be subject to certain liabilities of our
acquisition targets;
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we may be required to sustain significant exit or impairment
charges if products acquired in business combinations are
unsuccessful; and
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adverse outcomes in legal proceedings.
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Our failure to effectively integrate any future acquisition
would adversely affect the benefit of such transaction,
including potential synergies or sales growth opportunities, to
the extent in or the time frame anticipated.
Government
contracts are subject to unique costs, terms, regulations,
claims and penalties that could reduce their profitability to
us.
As a result of the acquisition of Manugistics, we acquired a
number of contracts with the U.S. government. Government
contracts entail many unique risks, including, but not limited
to, the following:
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early termination of contracts by the government;
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costly and complex competitive bidding process;
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required extensive use of subcontractors, whose work may be
deficient or not performed in a timely manner;
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significant penalties associated with employee misconduct in the
highly regulated government marketplace;
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changes or delays in government funding that could negatively
impact contracts; and
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onerous contractual provisions unique to the government such as
most favored customer provisions.
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These risks may make the contracts less profitable or cause them
to be terminated, which would adversely affect the business.
If we
do not identify, adopt and develop product architecture that is
compatible with emerging industry standards, our products will
be less attractive to customers.
The markets for our software products are characterized by rapid
technological change, evolving industry standards, changes in
customer requirements and frequent new product introductions and
enhancements. We continuously evaluate new technologies and when
appropriate implement into our products advanced technology such
as our current JDA Enterprise Architecture platform effort.
However, if we fail in our product development efforts to
accurately address in a timely manner, evolving industry
standards, new
18
technology advancements or important third-party interfaces or
product architectures, sales of our products and services may
suffer.
Our software products can be licensed with a variety of popular
industry standard platforms and are authored in various
development environments using different programming languages
and underlying databases and architectures. There may be future
or existing platforms that achieve popularity in the marketplace
that may not be compatible with our software product design.
Developing and maintaining consistent software product
performance across various technology platforms could place a
significant strain on our resources and software product release
schedules, which could adversely affect our results of
operations.
We may
be impacted by shifts in consumer preferences affecting the
supply chain that could reduce our revenues.
We are dependent upon and derive most of our revenue from the
supply chain linking manufacturers, distributors and retailers
to consumers, or consumer products supply chain vertical. If a
shift in spending occurs in this vertical market that results in
decreased demand for the types of solutions we sell, it would be
difficult to adjust our strategies and solution offerings
because of our dependence on these markets. If the consumer
products supply chain vertical experiences a decline in
business, it could have a significant adverse impact on our
business prospects, particularly if it is a prolonged decline.
The current economic downturn has caused declines in certain
areas of the consumer products supply chain. If economic
conditions continue to deteriorate or the failure rates of
customers in our target markets increase, we may experience an
overall decline in sales that would adversely impact our
business.
Risks
Related to the Acquisition of i2
We may
not realize the anticipated benefits of our acquisition of i2,
including potential synergies, due to challenges associated with
integrating the companies or other factors.
The success of our acquisition of i2 will depend in part on the
success of our management in integrating the operations,
technologies and personnel of i2 with JDA. Managements
inability to meet the challenges involved in integrating
successfully the operations of JDA and i2 or otherwise to
realize the anticipated benefits of the transaction could
seriously harm our results of operations. In addition, the
overall integration of the two companies will require
substantial attention from our management, particularly in light
of the geographically dispersed operations of the two companies,
which could further harm our results of operations.
The challenges involved in integration include:
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integrating the two companies operations, processes,
people, technologies, products and services;
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coordinating and integrating sales and marketing and research
and development functions;
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demonstrating to our clients that the acquisition will not
result in adverse changes in business focus, products and
service deliverables (including customer satisfaction);
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assimilating and retaining the personnel of both companies and
integrating the business cultures, operations, systems and
clients of both companies; and
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consolidating corporate and administrative infrastructures and
eliminating duplicative operations and administrative functions.
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We may not be able to successfully integrate the operations of
i2 in a timely manner, or at all, and we may not realize the
anticipated benefits of the acquisition, including potential
synergies or sales or growth opportunities, to the extent or in
the time frame anticipated. The anticipated benefits and
synergies of the acquisition are based on assumptions and
current expectations, with limited actual experience, and assume
that
19
we will successfully integrate and reallocate resources among
our facilities without unanticipated costs and that our efforts
will not have unforeseen or unintended consequences. In
addition, our ability to realize the benefits and synergies of
the business combination could be adversely impacted to the
extent that JDAs or i2s relationships with existing
or potential clients, suppliers or strategic partners is
adversely affected as a consequence of the transaction, as a
result of further weakening of global economic conditions, or by
practical or legal constraints on its ability to combine
operations. Furthermore, a portion of our ability to realize
synergies and cost savings depends on our ability to continue to
migrate work from certain of our on-shore facilities to our
off-shore facilities.
If we
are unable to successfully execute on any of our identified
business opportunities or other business opportunities that we
determine to pursue, we may not achieve the benefits of the
acquisition and our business may be harmed.
As a result of our acquisition of i2, we have approximately
3,000 employees. In order to pursue business opportunities, we
will need to continue to build our infrastructure, client
initiatives and operational capabilities. Our ability to do any
of these successfully could be affected by one or more of the
following factors:
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the ability of our technology and hardware, suppliers and
service providers to perform as we expect;
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our ability to execute our strategy and continue to operate a
larger, more diverse business efficiently on a global basis;
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our ability to effectively manage our third party relationships;
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our ability to attract and retain qualified personnel;
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our ability to effectively manage our employee costs and other
expenses;
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our ability to retain and grow revenues and profits from our
clients and the current portfolio of business with each client;
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technology and application failures and outages, security
breaches or interruption of service, which could adversely
affect our reputation and our relations with our clients;
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our ability to accurately predict and respond to the rapid
technological changes in our industry and the evolving service
and pricing demands of the markets we serve; and
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our ability to raise additional capital to fund our long-term
growth plans.
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Our failure to adequately address the above factors would have a
significant impact on our ability to implement our business plan
and our ability to pursue other opportunities that arise, which
might negatively affect our business.
i2 has
been, and we may be, subject to product quality and performance
claims, which could seriously harm our business.
From time to time prior to the acquisition, customers of i2 made
claims pertaining to the quality and performance of i2s
software and services, citing a variety of issues. Whether
customer claims regarding the quality and performance of
i2s products and services are founded or unfounded, they
may adversely impact customer demand and affect JDAs
market perception, its products and services. Any such damage to
our reputation could have a material adverse effect on our
business, results of operations, cash flow and financial
condition.
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Risks
Related To Our Indebtedness and the Exchange Notes
We
have a substantial amount of debt, which could impact our
ability to obtain future financing or pursue our growth
strategy.
After the acquisition of i2, we have $275 million of
long-term debt. Cash flow from operations was $9.6 million
in first half 2010 and includes the impact of i2 from the
January 28, 2010 (date of acquisition) through
June 30, 2010. Cash flow from operations, without the cash
flow from i2, was $60.5 million in first half 2009, and
$96.5 million and $47.1 million in the years ended
December 31, 2009 and 2008, respectively. Our indebtedness
could have significant adverse effects on our business,
including the following:
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we must use a substantial portion of our cash flow from
operations to pay interest on our indebtedness, which will
reduce the funds available to us for operations and other
purposes;
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our ability to obtain additional financing for working capital,
capital expenditures, acquisitions or general corporate purposes
may be impaired;
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our high level of indebtedness could place us at a competitive
disadvantage compared to our competitors that may have
proportionately less debt;
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our flexibility in planning for, or reacting to, changes in our
business and the industry in which we operate may be limited;
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our high level of indebtedness may make us more vulnerable to
economic downturns and adverse developments in our
business; and
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our ability to fund a change of control offer may be limited.
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The instruments governing the exchange notes contain, and the
instruments governing any indebtedness we may incur in the
future may contain, restrictive covenants that limit our ability
to engage in activities that may be in our long-term best
interests. Our failure to comply with these covenants could
result in an event of default which, if not cured or waived,
could result in the acceleration of all or a portion of our
outstanding indebtedness.
Payments
on our indebtedness will require a significant amount of cash.
Our ability to meet our cash requirements and service our debt
could affect the value of the exchange notes and our ability to
repay the exchange notes.
We expect to obtain the funds to pay our expenses and to pay the
amounts due under the exchange notes offered herein primarily
from our operations. Our ability to meet our expenses and make
these payments thus depends on our future performance, which
will be affected by financial, business, economic and other
factors, many of which we cannot control. Our business may not
generate sufficient cash flow from operations in the future and
our currently anticipated growth in revenue and cash flow may
not be realized, either or both of which could result in our
being unable to repay indebtedness, including the exchange
notes, or to fund other liquidity needs. If we do not have
sufficient cash resources in the future, we may be required to
refinance all or part of our then existing debt, sell assets or
borrow more money. We cannot assure you that we will be able to
accomplish any of these alternatives on terms acceptable to us
or at all. In addition, the terms of existing or future debt
agreements may restrict us from adopting any of these
alternatives. Our failure to generate sufficient cash flow or to
achieve any of these alternatives could materially adversely
affect the value of the exchange notes and our ability to pay
the amounts due under the exchange notes.
We may
be able to incur substantial additional indebtedness that could
further exacerbate the risks associated with our
indebtedness.
We may incur substantial additional indebtedness in the future.
Although the indenture governing the exchange notes will contain
restrictions on our incurrence of additional debt, these
restrictions are subject to a
21
number of qualifications and exceptions, and we could incur
substantial additional secured or unsecured indebtedness, which
may include a credit facility which may include financial ratio
requirements and covenants. If we incur additional debt, the
risks related to our leverage and debt service requirements
would increase.
The
exchange notes and the exchange note guarantees will be
structurally subordinated to indebtedness and other liabilities
of our non-guarantor subsidiaries.
Our non-US subsidiaries will not guarantee the exchange notes.
The exchange notes and the exchange note guarantees will be
structurally subordinated to the indebtedness and other
liabilities of our and i2s non-guarantor subsidiaries, and
noteholders will not have any claim as a creditor against any
such non-guarantor subsidiary. In addition, subject to certain
limitations, the indenture governing the exchange notes will
permit our non-guarantor subsidiaries to incur additional
indebtedness.
The
exchange notes are not secured by our assets and secured lenders
may have priority over the noteholders in a bankruptcy
proceeding.
Under the indenture governing the exchange notes, we are
permitted to incur liens securing certain additional
indebtedness. The exchange notes will be effectively junior in
right to payment to any future secured indebtedness to the
extent of the collateral securing such indebtedness. If we
become insolvent or are liquidated, or if payment in respect of
any future secured indebtedness is accelerated, the holders of
such future secured indebtedness will be entitled to exercise
the remedies available to a secured lender under applicable law
(in addition to any remedies that may be available under
documents pertaining to such secured debt). If we are unable to
pay our obligations to a senior secured lender, they could
proceed against any or all of the collateral securing our
indebtedness to them. In addition, a breach of the restrictions
or covenants contained in any future senior secured credit
facility or an acceleration by any future senior secured lenders
of our obligations to them would allow such lenders to take
security in all of our assets and would cause a default under
the exchange notes. We may not have, or be able to obtain,
sufficient funds to repay the exchange notes in full upon
acceleration after we pay any senior secured lenders to the
extent of their collateral.
A
court could void our subsidiaries guarantees of the
exchange notes under fraudulent transfer laws, which could limit
your ability to seek repayment.
Although the guarantees provide the noteholders with a direct
claim against the assets of the subsidiary guarantors, under the
federal bankruptcy laws and comparable provisions of state
fraudulent transfer laws, or bankruptcy laws in other applicable
jurisdictions, a guarantee could be voided, or claims with
respect to a guarantee could be subordinated to all other debts
of that guarantor. In addition, a bankruptcy court could void
(i.e., cancel) any payments by that guarantor pursuant to its
guarantee and require those payments to be returned to the
guarantor or to a fund for the benefit of the other creditors of
the guarantor. The bankruptcy court might take these actions if
it found, among other things, that when a subsidiary guarantor
executed its guarantee (or, in some jurisdictions, when it
became obligated to make payments under its guarantee):
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such subsidiary guarantor received less than reasonably
equivalent value or fair consideration for the incurrence of its
guarantee; and
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such subsidiary guarantor:
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was (or was rendered) insolvent by the incurrence of the
guarantee;
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was engaged or about to engage in a business or transaction for
which its assets constituted unreasonably small capital to carry
on its business;
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intended to incur, or believed that it would incur, obligations
beyond its ability to pay as those obligations matured; or
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was a defendant in an action for money damages, or had a
judgment for money damages docketed against it and, in either
case, after final judgment, the judgment was unsatisfied.
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A bankruptcy court would likely find that a subsidiary guarantor
received less than fair consideration or reasonably equivalent
value for its guarantee to the extent that it did not receive
direct or indirect benefit from the issuance of the exchange
notes. A bankruptcy court could also void a guarantee if it
found that the subsidiary issued its guarantee with actual
intent to hinder, delay, or defraud creditors.
Although courts in different jurisdictions measure solvency
differently, in general, an entity would be deemed insolvent if
the sum of its debts, including contingent and unliquidated
debts, exceeds the fair value of its assets, or if the present
fair salable value of its assets is less than the amount that
would be required to pay the expected liability on its debts,
including contingent and unliquidated debts, as they become due.
If a court voided a guarantee, it could require that noteholders
return any amounts previously paid under such guarantee. If any
guarantee were voided, noteholders would retain their rights
against us and any other subsidiary guarantors, although there
is no assurance that those entities assets would be
sufficient to pay the exchange notes in full.
Any
future exchange note guarantees provided after the exchange
notes are issued could also be avoided by a trustee in
bankruptcy.
The indenture governing the exchange notes provides that certain
of our future subsidiaries will guarantee the exchange notes.
Any future exchange note guarantee might be avoidable by the
grantor or by its trustee in bankruptcy or other third parties
if certain events or circumstances exist or occur. For instance,
if the entity granting the future exchange note guarantee was
insolvent at the time of the grant and if such grant was made
within 90 days, or in certain circumstances, a longer
period, before that entity commenced a bankruptcy proceeding,
and the granting of the future exchange note guarantee enabled
the noteholders to receive more than they would if the grantor
were liquidated under Chapter 7 of the U.S. Bankruptcy
Code, then such exchange note guarantee could be avoided as a
preferential transfer.
We may
not be able to fulfill our repurchase obligations with respect
to the exchange notes upon a change of control or an asset
sale.
If we experience certain change of control events, we are
required by the indenture governing the exchange notes to offer
to repurchase all outstanding exchange notes at a repurchase
price equal to 101% of the principal amount of exchange notes
repurchased, plus accrued and unpaid interest and additional
interest, if any, to the applicable repurchase date. In
addition, under certain circumstances, if we sell assets and
fail to apply the net proceeds therefrom as provided in the
indenture, we must offer to repurchase the exchange notes at a
repurchase price equal to 100% of the principal amount of the
exchange notes repurchased, plus accrued and unpaid interest and
additional interest, if any, to the applicable repurchase date.
If a change of control event or an asset sale were to occur, we
cannot assure you that we would have sufficient funds to repay
any exchange notes that they would be required to offer to
purchase or that would become immediately due and payable as a
result of such change of control event or asset sale. We may
require additional financing from third parties to fund any such
repurchases, and we cannot assure you that we would be able to
obtain additional financing on satisfactory terms or at all. Our
failure to repay noteholders who tender exchange notes for
repurchase following a change of control event could result in
an event of default under the indenture governing the exchange
notes. Any future indebtedness to which we become a party may
also prohibit us from purchasing exchange notes. If a change of
control event or an asset sale occurs at a time when we are
prohibited from purchasing exchange notes, we may have to either
seek the consent of the applicable lenders to the purchase of
exchange notes or attempt to refinance the borrowings that
contain such prohibition. Our failure to obtain such a consent
or to refinance such borrowings may preclude us from purchasing
tendered exchange notes and trigger an event of default under
the indenture governing the exchange notes, which may, in turn,
constitute a default under other indebtedness.
23
Noteholders
may not be able to determine when a change of control giving
rise to mandatory repurchase rights has occurred following a
sale of substantially all of our assets and our
restricted subsidiaries assets.
The definition of change of control in the indenture governing
the exchange notes includes a phrase relating to the direct or
indirect sale, transfer, conveyance or other disposition of
all or substantially all of our assets and our
restricted subsidiaries assets. There is no precise
established definition of the phrase substantially
all under applicable law. Accordingly, the ability of a
noteholder to require us to repurchase exchange notes as a
result of a sale, transfer, conveyance or other disposition of
less than all of our assets and our restricted
subsidiaries assets to another individual, group or entity
may be uncertain.
The
trading prices for the exchange notes will be directly affected
by many factors, including our credit rating.
Credit rating agencies continually revise their ratings for
companies they follow, including us. Any ratings downgrade could
adversely affect the trading price of the exchange notes, or the
trading market for the exchange notes, to the extent a trading
market for the exchange notes develops. The condition of the
financial and credit markets and prevailing interest rates have
fluctuated in the past and are likely to fluctuate in the future
and any fluctuation may impact the trading price of the exchange
notes.
There
is no public market for the exchange notes and we do not know if
a market will ever develop or, if a market does develop, whether
it will be sustained.
The exchange notes are a new issue of securities and there is no
existing trading market for the exchange notes. Accordingly, we
cannot assure you that a liquid market will develop or continue
for the exchange notes or that you will be able to sell your
exchange notes at a particular time or at the price that you
desire. We do not intend to apply for listing or quotation of
the exchange notes on any securities exchange or stock market.
The liquidity of any market for the exchange notes will depend
on a number of factors, including:
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our operating performance and financial condition;
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our ability to complete the offer to exchange the old notes for
the exchange notes;
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the market for similar securities;
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the interest of securities dealers in making a market in the
exchange notes; and
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prevailing interest rates.
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The
trading price of the exchange notes may be
volatile.
Historically, the market for non-investment grade debt has been
subject to disruptions that have caused substantial volatility
in the prices of securities similar to the exchange notes. We
cannot assure you that any such disruptions may not adversely
affect the prices at which you may sell your exchange notes. The
exchange notes may trade at a discount from the initial offering
price of the exchange notes, depending upon prevailing interest
rates, the market for similar exchange notes, our performance
and other factors.
Risks
Related to Retention of the Old Notes
If you
do not exchange your old notes, your old notes will continue to
be subject to the existing transfer restrictions and you may be
unable to sell your old notes.
We will only issue exchange notes in exchange for old notes that
are validly tendered in accordance with the procedures set forth
in this prospectus. Therefore, you should carefully follow the
instructions on how
24
to tender your old notes. See The Exchange
OfferProcedures for Tendering Old Notes. We did not
register the old notes under the Securities Act, nor do we
intend to do so following the exchange offer. If you do not
exchange your old notes in the exchange offer, or if your old
notes are not accepted for exchange, then, after we consummate
the exchange offer, you may continue to hold old notes that are
subject to the existing transfer restrictions and may be
transferred only in limited circumstances under the securities
laws. If you do not exchange your old notes, you will lose your
right to have your old notes registered under the federal
securities laws, except in limited circumstances. As a result,
you will not be able to offer or sell old notes except in
reliance on an exemption from, or in a transaction not subject
to, the Securities Act and applicable state securities laws.
Because we anticipate that most holders of old notes will
elect to exchange their old notes, we expect that the liquidity
of the trading market for any old notes remaining after the
completion of the exchange offer will be substantially reduced.
Any old notes tendered and exchanged in the exchange offer will
reduce the aggregate number of old notes outstanding.
Accordingly, the liquidity of the market for any old notes could
be adversely affected and you may be unable to sell them.
25
USE OF
PROCEEDS
We will not receive any cash proceeds from the issuance of the
exchange notes in the exchange offer. In consideration for
issuing the exchange notes, we will receive in exchange old
notes in like principal amount. The form and terms of the
exchange notes are identical in all material respects to the
form and terms of the old notes, except that the transfer
restrictions, registration rights and rights to special interest
applicable to the old notes do not apply to the exchange notes.
The old notes surrendered in exchange for the exchange notes
will be retired and canceled and cannot be reissued.
Accordingly, issuance of the exchange notes will not result in
any increase in our outstanding debt.
On December 10, 2009, we issued and sold the old notes. The
net proceeds from the sale of the old notes, together with our
cash on hand and the cash on hand at i2 Technologies, Inc., were
used to pay the cash portion of the consideration of our
acquisition of i2 Technologies, Inc. on January 28, 2010.
26
THE
EXCHANGE OFFER
Purpose
of the Exchange Offer
The exchange offer is designed to provide holders of old notes
with an opportunity to acquire exchange notes which, unlike the
old notes, will be freely transferable at all times, subject to
any restrictions on transfer imposed by state blue
sky laws and provided that the holder is not our affiliate
within the meaning of the Securities Act and represents that the
exchange notes are being acquired in the ordinary course of the
holders business and the holder is not engaged in, and
does not intend to engage in, a distribution of the exchange
notes.
The old notes were originally issued and sold on
December 10, 2009, the issue date, to the initial
purchasers, pursuant to the purchase agreement dated
December 10, 2009. The old notes were issued and sold in a
transaction not registered under the Securities Act in reliance
upon the exemption provided by Section 4(2) of the
Securities Act. The concurrent resale of the old notes by the
initial purchasers to investors was done in reliance upon the
exemptions provided by Rule 144A and Regulation S
promulgated under the Securities Act. The old notes may not be
reoffered, resold or transferred other than (i) to us or
our subsidiaries, (ii) to a qualified institutional buyer
in compliance with Rule 144A promulgated under the
Securities Act, (iii) outside the United States to a
non-U.S.
person within the meaning of Regulation S under the
Securities Act, (iv) pursuant to the exemption from
registration provided by Rule 144 promulgated under the
Securities Act (if available) or (v) pursuant to an
effective registration statement under the Securities Act.
In connection with the original issuance and sale of the old
notes, we entered into a registration rights agreement, pursuant
to which we agreed to file with the SEC a registration statement
covering the exchange by us of the exchange notes for the old
notes, or the exchange offer. The registration rights agreement
provides that we will file with the SEC an exchange offer
registration statement on an appropriate form under the
Securities Act and offer to holders of old notes who are able to
make certain representations the opportunity to exchange their
old notes for exchange notes.
Under existing interpretations by the Staff of the SEC as set
forth in no-action letters issued to third parties in other
transactions, the exchange notes would, in general, be freely
transferable after the exchange offer without further
registration under the Securities Act; provided, however, that
in the case of broker-dealers participating in the exchange
offer, a prospectus meeting the requirements of the Securities
Act must be delivered by such broker-dealers in connection with
resales of the exchange notes. We have agreed to furnish a
prospectus meeting the requirements of the Securities Act to any
such broker-dealer for use in connection with any resale of any
exchange notes acquired in the exchange offer. A broker-dealer
that delivers such a prospectus to purchasers in connection with
such resales will be subject to certain of the civil liability
provisions under the Securities Act and will be bound by the
provisions of the registration rights agreement (including
certain indemnification rights and obligations).
Each holder of old notes that exchanges such old notes for
exchange notes in the exchange offer will be deemed to have made
certain representations, including representations that
(i) any exchange notes to be received by it will be
acquired in the ordinary course of its business, (ii) it
has no arrangement or understanding with any person to
participate in the distribution (within the meaning of the
Securities Act) of exchange notes and (iii) it is not our
affiliate as defined in Rule 405 under the Securities Act,
or if it is an affiliate, it will comply with the registration
and prospectus delivery requirements of the Securities Act to
the extent applicable.
If the holder is not a broker-dealer, it will be required to
represent that it is not engaged in, and does not intend to
engage in, the distribution of exchange notes. If the holder is
a broker-dealer that will receive exchange notes for its own
account in exchange for old notes that were acquired as a result
of market-making activities or other trading activities, it will
be required to acknowledge that it will deliver a prospectus in
connection with any resale of such exchange notes.
27
Terms of
the Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus and in the letter of transmittal, we will accept any
and all old notes validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on the expiration date.
Subject to the minimum denomination requirements of the exchange
notes, the exchange notes are being offered in exchange for a
like principal amount of old notes. Old notes may be exchanged
only in denominations of $2,000 and integral multiples of
$1,000. Holders may tender all, some or none of their old notes
pursuant to the exchange offer.
The form and terms of the exchange notes will be identical in
all material respects to the form and terms of the old notes
except that (i) the exchange notes will be registered under
the Securities Act and, therefore, will not bear legends
restricting the transfer thereof and (ii) holders of the
exchange notes will not be entitled to certain rights of holders
of old notes under and related to the registration rights
agreement. The exchange notes will evidence the same debt as the
old notes and will be entitled to the benefits of the indenture.
The exchange notes will be treated as a single class under the
indenture with any old notes that remain outstanding. The
exchange offer is not conditioned upon any minimum aggregate
principal amount of old notes being tendered for exchange.
Expiration
Date; Extensions; Termination; Amendments
The exchange offer will expire at 5:00 p.m., New York City
time,
on ,
2010 (21 business days following the date notice of the exchange
offer was mailed to the holders). We reserve the right to extend
the exchange offer at our discretion, in which event the term
expiration date shall mean the time and date on
which the exchange offer as so extended shall expire. Any such
extension will be communicated to the exchange agent either
orally or in writing and will be followed promptly by a press
release or other permitted means which will be made no later
than 9:00 a.m., New York City time, on the business day
immediately following the previously scheduled expiration date.
We reserve the right to extend or terminate the exchange offer
and not accept for exchange any old notes if any of the events
set forth below under Conditions to the
Exchange Offer occur, and are not waived by us, by giving
oral or written notice of such delay or termination to the
exchange agent. See Conditions to the Exchange
Offer.
We also reserve the right to amend the terms of the exchange
offer in any manner, provided, however, that if we amend the
exchange offer in a manner that we determine constitutes a
material or significant change, we will extend the exchange
offer so that it remains open for a period of five to ten
business days after such amendment is communicated to holders,
depending upon the significance of the amendment.
Without limiting the manner in which we may choose to make a
public announcement of any extension, termination or amendment
of the exchange offer, we will comply with applicable securities
laws by disclosing any such amendment by means of a prospectus
supplement that we distribute to holders of the old notes. We
will have no other obligation to publish, advertise or otherwise
communicate any such public announcement other than by making a
timely release through any appropriate news agency.
Procedures
for Tendering Old Notes
Since the old notes are represented by global book-entry notes,
DTC, as depositary, or its nominee is treated as the registered
holder of the old notes and will be the only entity that can
tender your old notes for exchange notes. Therefore, to tender
old notes subject to this exchange offer and to obtain exchange
notes, you must instruct the institution where you keep your old
notes to tender your old notes on your behalf so that they are
received prior to the expiration of this exchange offer.
The letter of transmittal that accompanies this prospectus may
be used by you to give such instructions.
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YOU SHOULD CONSULT YOUR ACCOUNT REPRESENTATIVE AT THE BROKER
OR BANK WHERE YOU KEEP YOUR OLD NOTES TO DETERMINE THE
PREFERRED PROCEDURE.
IF YOU WISH TO ACCEPT THIS EXCHANGE OFFER, PLEASE INSTRUCT
YOUR BROKER OR ACCOUNT REPRESENTATIVE IN TIME FOR YOUR OLD
NOTES TO BE TENDERED BEFORE THE 5:00 P.M. (NEW YORK
CITY TIME) DEADLINE
ON ,
2010.
You may tender all, some or none of your old notes in this
exchange offer. However, your old notes may be tendered only in
integral multiples of $1,000.
When you tender your old notes and we accept them, the tender
will be a binding agreement between you and us in accordance
with the terms and conditions in this prospectus.
We will decide all questions about the validity, form,
eligibility, acceptance and withdrawal of tendered old notes,
and our reasonable determination will be final and binding on
you. We reserve the absolute right to:
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(1)
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reject any and all tenders of any particular old note not
properly tendered;
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(2)
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refuse to accept any old note if, in our judgment or the
judgment of our counsel, the acceptance would be unlawful; and
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(3)
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waive any defects or irregularities or conditions to the
exchange offer as to any particular old notes before the
expiration of the exchange offer.
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Our reasonable interpretation of the terms and conditions of the
exchange offer will be final and binding on all parties. You
must cure any defects or irregularities in connection with
tenders of old notes as we will determine. Neither we, the
exchange agent nor any other person will incur any liability for
failure to notify you of any defect or irregularity with respect
to your tender of old notes. If we waive any terms or conditions
pursuant to (3) above with respect to a note holder, we
will extend the same waiver to all note holders with respect to
that term or condition being waived.
Deemed
Representations
To participate in the exchange offer, we require that you
represent to us that:
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(i)
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you or any other person acquiring exchange notes in exchange for
your old notes in the exchange offer is acquiring them in the
ordinary course of business;
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(ii)
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neither you nor any other person acquiring exchange notes in
exchange for your old notes in the exchange offer is engaging in
or intends to engage in a distribution of the exchange notes
within the meaning of the federal securities laws;
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(iii)
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neither you nor any other person acquiring exchange notes in
exchange for your old notes has an arrangement or understanding
with any person to participate in the distribution of exchange
notes issued in the exchange offer;
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(iv)
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neither you nor any other person acquiring exchange notes in
exchange for your old notes is our affiliate as
defined under Rule 405 of the Securities Act; and
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(v)
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if you or another person acquiring exchange notes in exchange
for your old notes is a broker-dealer and you acquired the old
notes as a result of market-making activities or other trading
activities, you acknowledge that you will deliver a prospectus
meeting the requirements of the Securities Act in connection
with any resale of the exchange notes.
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BY
TENDERING YOUR OLD NOTES YOU ARE DEEMED TO HAVE MADE
THESE
REPRESENTATIONS.
Broker-dealers who cannot make the representations in item
(v) of the paragraph above cannot use this exchange offer
prospectus in connection with resales of the exchange notes
issued in the exchange offer.
If you are our affiliate, as defined under
Rule 405 of the Securities Act, if you are a broker-dealer
who acquired your old notes in the initial offering and not as a
result of market-making or trading activities, or if you are
engaged in or intend to engage in or have an arrangement or
understanding with any person to participate in a distribution
of exchange notes acquired in the exchange offer, you or that
person:
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(i)
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may not rely on the applicable interpretations of the Staff of
the SEC and therefore may not participate in the exchange offer;
and
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(ii)
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must comply with the registration and prospectus delivery
requirements of the Securities Act or an exemption therefrom
when reselling the old notes.
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Procedures
for Brokers and Custodian Banks; DTC ATOP Account
In order to accept this exchange offer on behalf of a holder of
old notes you must submit or cause your DTC participant to
submit an Agents Message as described below.
The exchange agent, on our behalf, will seek to establish an
Automated Tender Offer Program, or ATOP, account with respect to
the old notes at DTC promptly after the delivery of this
prospectus. Any financial institution that is a DTC participant,
including your broker or bank, may make book-entry tender of old
notes by causing the book-entry transfer of such old notes into
our ATOP account in accordance with DTCs procedures for
such transfers. Concurrently with the delivery of old notes, an
Agents Message in connection with such book-entry transfer
must be transmitted by DTC to, and received by, the exchange
agent prior to 5:00 p.m., New York City time, on the
expiration date, or the guaranteed delivery procedures described
below must be complied with. The confirmation of a book-entry
transfer into the ATOP account as described above is referred to
herein as a Book-Entry Confirmation.
The term Agents Message means a message
transmitted by the DTC participants to DTC, and thereafter
transmitted by DTC to the exchange agent, forming a part of the
Book-Entry Confirmation which states that DTC has received an
express acknowledgment from the participant in DTC described in
such Agents Message stating that such participant and
beneficial holder agree to be bound by the terms of this
exchange offer.
Each Agents Message must include the following information:
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(i)
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Name of the beneficial owner tendering such old notes;
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(ii)
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Account number of the beneficial owner tendering such old notes;
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(iii)
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Principal amount of old notes tendered by such beneficial owner;
and
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(iv)
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A confirmation that the beneficial holder of the old notes
tendered has made the representations for the benefit of us set
forth under Deemed Representations above.
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BY SENDING AN AGENTS MESSAGE THE DTC PARTICIPANT IS
DEEMED TO HAVE CERTIFIED THAT THE BENEFICIAL HOLDER FOR WHOM OLD
NOTES ARE BEING TENDERED HAS BEEN PROVIDED WITH A COPY OF
THIS PROSPECTUS.
The delivery of old notes through DTC, and any transmission of
an Agents Message through ATOP, is at the election and
risk of the person tendering old notes. We will ask the exchange
agent to instruct DTC to return those old notes, if any, that
were tendered through ATOP but were not accepted by us, to the
DTC participant that tendered such old notes on behalf of
holders of the old notes.
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Guaranteed
Delivery Procedures
If your certificates for old notes are not lost but are not
immediately available or you cannot deliver your certificates
and any other required documents to the exchange agent at or
prior to 5:00 p.m., New York City time, on the expiration
date, or you cannot complete the procedures for book-entry
transfer at or prior to 5:00 p.m., New York City time, on
the expiration date, you may nevertheless effect a tender of
your original notes if:
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(i)
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the tender is made through an eligible institution;
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(ii)
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prior to the expiration date of the exchange offer, the exchange
agent receives by facsimile transmission, mail or hand delivery
from such eligible institution a validly completed and duly
executed notice of guaranteed delivery, substantially in the
form provided with this prospectus, or an agents message
with respect to guaranteed delivery which (1) sets forth
your name and address and the amount of your original notes
tendered, (2) states that the tender is being made thereby;
and (3) guarantees that within three New York Stock
Exchange trading days after the date of execution of the notice
of guaranteed delivery, the certificates for all physically
tendered original notes, in proper form for transfer, or a
book-entry confirmation, as the case may be, and any other
documents required by the letter of transmittal will be
deposited by the eligible institution with the exchange agent;
and
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(iii)
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the certificates for all physically tendered old notes, in
proper form for transfer, or a book-entry confirmation, as the
case may be, and all other documents required by the letter of
transmittal are received by the exchange agent within three New
York Stock Exchange trading days after the date of execution of
the notice of guaranteed delivery.
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Acceptance
of Old Notes for Exchange; Delivery of Exchange Notes
We will accept validly tendered old notes when the conditions to
the exchange offer have been satisfied or we have waived them.
We will have accepted your validly tendered old notes when we
have given oral or written notice to the exchange agent. The
exchange agent will act as agent for the tendering holders for
the purpose of receiving the exchange notes from us. If we do
not accept any old notes tendered for exchange by book-entry
transfer because of an invalid tender or other valid reason, we
will credit the old notes to an account maintained with DTC
promptly after the exchange offer terminates or expires.
THE AGENTS MESSAGE MUST BE TRANSMITTED TO THE EXCHANGE
AGENT BEFORE 5:00 PM, NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
Withdrawal
Rights
You may withdraw your tender of old notes at any time before
5:00 p.m., New York City time, on the expiration date.
For a withdrawal to be effective, you should contact your bank
or broker where your old notes are held and have them send an
ATOP notice of withdrawal so that it is received by the exchange
agent before 5:00 p.m., New York City time, on the
expiration date. Such notice of withdrawal must:
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(1)
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specify the name of the person that tendered the old notes to be
withdrawn;
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(2)
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identify the old notes to be withdrawn, including the CUSIP
number and principal amount at maturity of the old notes; and
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(3)
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specify the name and number of an account at DTC to which your
withdrawn old notes can be credited.
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We will decide all questions as to the validity, form and
eligibility (including time of receipt) of the notices and our
reasonable determination will be final and binding on all
parties. Any tendered old notes that
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you withdraw will not be considered to have been validly
tendered. We will return any old notes that have been tendered
but not exchanged, or credit them to the DTC account, promptly
after withdrawal, rejection of tender, or termination of the
exchange offer. You may re-tender properly withdrawn old notes
by following one of the procedures described above prior to the
expiration date.
Conditions
to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or
any extension of the exchange offer, we will not be required to
accept for exchange, or to issue exchange notes in exchange for,
any old notes and may terminate the exchange offer (whether or
not any old notes have been accepted for exchange) or amend the
exchange offer, if any of the following conditions has occurred
or exists or has not been satisfied, or has not been waived by
us in our sole reasonable discretion, prior to the expiration
date:
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there is threatened, instituted or pending any action or
proceeding before, or any injunction, order or decree issued by,
any court or governmental agency or other governmental
regulatory or administrative agency or commission:
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(1)
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seeking to restrain or prohibit the making or completion of the
exchange offer or any other transaction contemplated by the
exchange offer, or assessing or seeking any damages as a result
of this transaction; or
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(2)
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resulting in a material delay in our ability to accept for
exchange or exchange some or all of the old notes in the
exchange offer; or
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(3)
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any statute, rule, regulation, order or injunction has been
sought, proposed, introduced, enacted, promulgated or deemed
applicable to the exchange offer or any of the transactions
contemplated by the exchange offer by any governmental
authority, domestic or foreign; or
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any action has been taken, proposed or threatened, by any
governmental authority, domestic or foreign, that, in our sole
reasonable judgment, would directly or indirectly result in any
of the consequences referred to in clauses (1), (2) or
(3) above or, in our sole reasonable judgment, would result
in the holders of exchange notes having obligations with respect
to resales and transfers of exchange notes which are greater
than those described in the interpretation of the SEC referred
to above, or would otherwise make it inadvisable to proceed with
the exchange offer; or
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the following has occurred:
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(1)
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any general suspension of or general limitation on prices for,
or trading in, securities on any national securities exchange or
in the over-the-counter market; or
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(2)
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any limitation by a governmental authority which adversely
affects our ability to complete the transactions contemplated by
the exchange offer; or
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(3)
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a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or any
limitation by any governmental agency or authority which
adversely affects the extension of credit; or
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(4)
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a commencement of a war, armed hostilities or other similar
international calamity directly or indirectly involving the
United States, or, in the case of any of the preceding events
existing at the time of the commencement of the exchange offer,
a material acceleration or worsening of these calamities; or
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any change, or any development involving a prospective change,
has occurred or been threatened in our business, financial
condition, operations or prospects and those of our subsidiaries
taken as a whole that is or may be adverse to us, or we have
become aware of facts that have or may have an adverse impact on
the value of the old notes or the exchange
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notes, which in our sole reasonable judgment in any case makes
it inadvisable to proceed with the exchange offer
and/or
with
such acceptance for exchange or with such exchange; or
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there shall occur a change in the current interpretation by the
Staff of the SEC which permits the exchange notes issued
pursuant to the exchange offer in exchange for old notes to be
offered for resale, resold and otherwise transferred by holders
thereof (other than broker-dealers and any such holder which is
our affiliate within the meaning of Rule 405 promulgated
under the Securities Act) without compliance with the
registration and prospectus delivery provisions of the
Securities Act, provided that such exchange notes are acquired
in the ordinary course of such holders business and such
holders have no arrangement or understanding with any person to
participate in the distribution of such exchange notes; or
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any law, statute, rule or regulation shall have been adopted or
enacted which, in our reasonable judgment, would impair our
ability to proceed with the exchange offer; or
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a stop order shall have been issued by the SEC or any state
securities authority suspending the effectiveness of the
registration statement, or proceedings shall have been initiated
or, to our knowledge, threatened for that purpose, or any
governmental approval has not been obtained, which approval we
shall, in our sole reasonable discretion, deem necessary for the
consummation of the exchange offer as contemplated hereby; or
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we have received an opinion of counsel experienced in such
matters to the effect that there exists any actual or threatened
legal impediment (including a default or prospective default
under an agreement, indenture or other instrument or obligation
to which we are a party or by which we are bound) to the
consummation of the transactions contemplated by the exchange
offer.
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If we determine in our sole reasonable discretion that any of
the foregoing events or conditions has occurred or exists or has
not been satisfied, we may, subject to applicable law, terminate
the exchange offer (whether or not any old notes have been
accepted for exchange) or waive any such condition or otherwise
amend the terms of the exchange offer in any respect. If such
waiver or amendment constitutes a material change to the
exchange offer, we will promptly disclose such waiver or
amendment by means of a prospectus supplement that will be
distributed to the registered holders of the old notes and will
extend the exchange offer to the extent required by
Rule 14e-1
promulgated under the Exchange Act.
These conditions are for our sole benefit and we may assert them
regardless of the circumstances giving rise to any of these
conditions, or we may waive them, in whole or in part, in our
sole reasonable discretion, provided that we will not waive any
condition with respect to an individual holder of old notes
unless we waive that condition for all such holders. Any
reasonable determination made by us concerning an event,
development or circumstance described or referred to above will
be final and binding on all parties.
Exchange
Agent
We have appointed U.S. Bank National Association as the exchange
agent for the exchange offer. You should direct requests for
assistance and requests for additional copies of this prospectus
or of the blue-colored letter of transmittal to the exchange
agent at U.S. Bank National Association, Attn: Specialized
Finance, 60 Livingston Avenue, EP-MN-WS2N, St. Paul, MN
55107, telephone:
(800) 934-6802,
facsimile:
(651) 495-8158.
Fees and
Expenses
We have not retained any dealer-manager or similar agent in
connection with the exchange offer. We will not make any payment
to brokers, dealers or others for soliciting acceptances of the
exchange offer. However, we will pay the reasonable and
customary fees and reasonable
out-of-pocket
expenses to the
33
exchange agent in connection therewith. We will also pay the
cash expenses to be incurred in connection with the exchange
offer, including accounting, legal, printing, and related fees
and expenses.
Accounting
Treatment
The exchange notes will be recorded at the same carrying value
as the old notes, as reflected in our accounting records on the
date of exchange. Accordingly, we will recognize no gain or loss
for accounting purposes upon the closing of the exchange offer.
The expenses of the exchange offer will be expensed as incurred.
Consequences
of Failure to Exchange
Upon consummation of the exchange offer, certain rights under
and related to the registration rights agreement, including
registration rights and the right to receive the contingent
increases in the interest rate, will terminate. The old notes
that are not exchanged for exchange notes pursuant to the
exchange offer will remain restricted securities within the
meaning of Rule 144 promulgated under the Securities Act.
Accordingly, such old notes may be resold only (i) to us or
our subsidiaries, (ii) to a qualified institutional buyer
in compliance with Rule 144A promulgated under the
Securities Act, (iii) outside the United States to a
non-U.S.
person within the meaning of Regulation S under the
Securities Act, (iv) pursuant to the exemption from
registration provided by Rule 144 promulgated under the
Securities Act (if available) or (v) pursuant to an
effective registration statement under the Securities Act. The
liquidity of the old notes could be adversely affected by the
exchange offer.
34
DESCRIPTION
OF THE EXCHANGE NOTES
General
In this description, references to the notes are to
the exchange notes, unless the context otherwise requires. You
can find the definitions of other terms used in this description
under the subheading Certain Definitions. In this
description, the word JDA refers only to JDA
Software Group, Inc., a Delaware corporation, and not to any of
its Subsidiaries.
We issued the old notes and will issue the exchange notes
pursuant to an indenture dated as of December 10, 2009, as
modified by a supplemental indenture dated as of
January 28, 2010 (together, the indenture),
among JDA, the Guarantors and U.S. Bank National Association, as
trustee (the trustee). The form and terms of the old
notes and the exchange notes are identical in all material
respects except that the exchange notes will have been
registered under the Securities Act. See The Exchange
Offer Purpose of the Exchange Offer and
The Exchange Offer Terms of the Exchange
Offer. The terms of the notes include those stated in the
indenture and those made part of the indenture by reference to
the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act).
The following description is a summary of the material
provisions of the indenture. It does not restate the indenture
in its entirety. We urge you to read the indenture because it,
and not this description, defines your rights as holders of the
notes. Certain defined terms used in this description but not
defined below under Certain Definitions
have the meanings assigned to them in the indenture.
The registered holder of a note will be treated as its owner of
for all purposes. Only registered holders will have rights under
the indenture.
Brief
Description of the Notes and the Note Guarantees
The
Notes
The notes:
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will be general unsecured obligations of JDA;
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will be
pari passu
in right of payment with all existing
and future unsecured senior indebtedness of JDA;
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will be senior in right of payment to any future subordinated
indebtedness of JDA;
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will be effectively subordinated to all secured indebtedness of
JDA to the extent of the value of the assets securing that
indebtedness; and
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will be unconditionally guaranteed by the Guarantors.
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The
Note Guarantees
The notes will be guaranteed by all of JDAs Domestic
Subsidiaries that are not Immaterial Subsidiaries.
Each Note Guarantee:
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will be a general unsecured obligation of that Guarantor;
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will be
pari passu
in right of payment with all existing
and future unsecured senior indebtedness of that Guarantor;
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will be senior in right of payment with any future subordinated
indebtedness of that Guarantor; and
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will be effectively subordinated to all secured indebtedness of
that Guarantor to the extent of the value of the assets securing
that indebtedness.
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Not all of JDAs Subsidiaries will guarantee the notes. In
the event of a bankruptcy, liquidation or reorganization of any
of these non-guarantor Subsidiaries, the non-guarantor
Subsidiaries will pay the holders of their debt and their trade
creditors before they will be able to distribute any of their
assets to JDA. See Risk Factors Risks Related
to Our Indebtedness and the Exchange Notes The
Exchange Notes and the Note Guarantees will be Structurally
Subordinated to Indebtedness and Other liabilities of our
Non-Guarantor Subsidiaries.
Principal,
Maturity and Interest
The notes will mature on December 15, 2014 and will bear
interest at 8.00% per annum and have an initial aggregate
principal amount of $275 million. JDA may issue additional
notes under the indenture from time to time after this offering.
Any offering of such additional notes is subject to the covenant
described below under the caption Certain
CovenantsIncurrence of Indebtedness and Issuance of
Preferred Stock. The notes and any additional notes
subsequently issued under the indenture will be treated as a
single class for all purposes under the indenture, including,
without limitation, waivers, amendments, redemptions and offers
to purchase. JDA will issue notes only in denominations of
$2,000 and integral multiples of $1,000.
Interest on the notes will accrue at the rate of 8.00% per annum
and will be payable semi-annually in arrears on June 15 and
December 15, commencing on December 15, 2010. Interest
on overdue principal and interest will accrue at the then
applicable interest rate on the notes. JDA will make each
interest payment to the trustee (for the benefit of the Holders
of record on the immediately preceding June 1 and December 1).
Interest on the notes will accrue from the date of original
issuance or, if interest has already been paid, from the date it
was most recently paid. Interest will be computed on the basis
of a
360-day
year comprised of twelve
30-day
months.
The old notes, the exchange notes and any additional notes
subsequently issued under the indenture will be treated as a
single class for all purposes under the indenture, including,
without limitation, waivers, amendments, redemptions and offers
to purchase.
Methods
of Receiving Payments on the Notes
If a holder of notes has given wire transfer instructions to
JDA, JDA will pay or cause to be paid all principal of, premium
on, if any, and interest on, that holders notes in
accordance with those instructions. All other payments on the
notes will be made at the office or agency of the paying agent
and registrar within the City and State of New York unless JDA
elects to make interest payments by check mailed to the holders
of notes at their address set forth in the register of holders.
Paying
Agent and Registrar for the Notes
The trustee will initially act as paying agent and registrar.
JDA may change the paying agent or registrar without prior
notice to the holders of the notes, and JDA or any of its
Subsidiaries may act as paying agent or registrar.
Transfer
and Exchange
A holder may transfer or exchange notes in accordance with the
provisions of the indenture. The registrar and the trustee may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents in connection with a
transfer of notes. Holders will be required to pay all taxes due
on transfer. JDA will not be required to transfer or exchange
any note selected for redemption. Also, JDA will not be required
to transfer or exchange any note for a period of 15 days
before a selection of notes to be redeemed.
36
Note Guarantees
The notes will be guaranteed by each of JDAs current and
future Domestic Subsidiaries that are not Immaterial
Subsidiaries. The Note Guarantees will be joint and several
obligations of the Guarantors.
A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge
with or into (whether or not such Guarantor is the surviving
Person) another Person, other than JDA or another Guarantor,
unless:
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(1)
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immediately after giving effect to such transaction, no Default
or Event of Default exists; and
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(2)
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either:
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(a)
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the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger, if other than the Guarantor, assumes
all the obligations of that Guarantor under its
Note Guarantee, the indenture, and pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the trustee; or
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(b)
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the Net Proceeds of such sale or other disposition are applied,
to the extent such sale or disposition constitutes an Asset
Sale, in accordance with the covenant described below under the
caption entitled Repurchase at the Option of
Holders Asset Sales.
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The Note Guarantee of a Guarantor will be released:
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(1)
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in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor, by way of
merger, consolidation or otherwise, to a Person that is not
(either before or after giving effect to such transaction) JDA
or a Restricted Subsidiary of JDA, if the sale or other
disposition does not violate the Asset Sale
provisions of the indenture;
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(2)
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in connection with any sale or other disposition of Capital
Stock of that Guarantor to a Person that is not (either before
or after giving effect to such transaction) JDA or a Restricted
Subsidiary of JDA, if the sale or other disposition does not
violate the Asset Sale provisions of the indenture;
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(3)
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if JDA designates any Restricted Subsidiary that is a Guarantor
to be an Unrestricted Subsidiary and, to the extent such
covenant is then applicable, such designation complies with the
covenant described below under the caption entitled
Certain Covenants Designation of Restricted and
Unrestricted Subsidiaries; or
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(4)
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upon legal defeasance, covenant defeasance or satisfaction and
discharge of the indenture as provided below under the captions
Legal Defeasance and Covenant Defeasance
and Satisfaction and Discharge.
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Optional
Redemption
At any time prior to December 15, 2012, JDA may on any one
or more occasions redeem up to 35% of the aggregate principal
amount of notes issued under the indenture, upon not less than
30 nor more than 60 days notice, at a redemption
price equal to 108.0% of the principal amount of the notes
redeemed, plus accrued and unpaid interest, to the date of
redemption (subject to the rights of holders of notes on the
relevant record date to receive interest on the relevant
interest payment date), with the net cash proceeds of an Equity
Offering by JDA;
provided
that:
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(1)
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at least 65% of the aggregate principal amount of notes
originally issued under the indenture (excluding notes held by
JDA and its Subsidiaries) remains outstanding immediately after
the occurrence of such redemption; and
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(2)
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the redemption occurs within 90 days of the date of the
closing of such Equity Offering.
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37
At any time prior to December 15, 2012, JDA may on any one
or more occasions redeem all or a part of the notes, upon not
less than 30 nor more than 60 days notice, at a
redemption price equal to 100% of the principal amount of the
notes redeemed, plus the Applicable Premium as of, and accrued
and unpaid interest, to the date of redemption, subject to the
rights of holders of notes on the relevant record date to
receive interest due on the relevant interest payment date.
Except pursuant to the preceding paragraphs, the notes will not
be redeemable at JDAs option prior to December 15,
2012.
On or after December 15, 2012, JDA may on any one or more
occasions redeem all or a part of the notes, upon not less than
30 nor more than 60 days notice, at the redemption
prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest on the notes redeemed,
to the applicable date of redemption, if redeemed during the
twelve-month period beginning on December 15 of the years
indicated below, subject to the rights of holders of notes on
the relevant record date to receive interest on the relevant
interest payment date:
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Year
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Percentage
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2012
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104.0%
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2013
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100.0%
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Unless JDA defaults in the payment of the redemption price,
interest will cease to accrue on the notes or portions thereof
called for redemption on the applicable redemption date.
Repurchase
at the Option of Holders
Change
of Control
If a Change of Control occurs, each holder of notes will have
the right to require JDA to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of
that holders notes pursuant to a Change of Control Offer
on the terms set forth in the indenture. In the Change of
Control Offer, JDA will offer a Change of Control Payment in
cash equal to 101% of the aggregate principal amount of notes
repurchased, plus accrued and unpaid interest on the notes
repurchased to the date of purchase, subject to the rights of
holders of notes on the relevant record date to receive interest
due on the relevant interest payment date. Within 30 days
following any Change of Control, JDA will mail a notice to each
holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase
notes on the Change of Control Payment Date specified in the
notice, which date will be no earlier than 10 business days and
no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by the indenture and
described in such notice.
On the Change of Control Payment Date, JDA will, to the extent
lawful:
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(1)
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accept for payment all notes or portions of notes properly
tendered pursuant to the Change of Control Offer;
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(2)
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deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all notes or portions of notes
properly tendered; and
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(3)
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deliver or cause to be delivered to the trustee the notes
properly accepted together with an officers certificate
stating the aggregate principal amount of notes or portions of
notes being purchased by JDA.
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The paying agent will promptly mail to each holder of notes
properly tendered the Change of Control Payment for such notes,
and the trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each holder a new note equal in
principal amount to any unpurchased portion of the notes
surrendered, if any;
provided
that each such new notes
shall be in denominations of $2,000 and integral multiples of
$1,000 in excess of $2,000. JDA will publicly announce the
results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
38
The provisions described above that require JDA to make a Change
of Control Offer following a Change of Control will be
applicable whether or not any other provisions of the indenture
are applicable. Except as described above with respect to a
Change of Control, the indenture does not contain provisions
that permit the holders of the notes to require that JDA
repurchase or redeem the notes in the event of a takeover,
recapitalization or similar transaction.
JDA will not be required to make a Change of Control Offer upon
a Change of Control if (1) a third party makes the Change
of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the indenture
applicable to a Change of Control Offer made by JDA and
purchases all notes properly tendered and not withdrawn under
the Change of Control Offer, or (2) notice of redemption
has been given pursuant to the indenture as described above
under the caption Optional Redemption,
unless and until there is a default in payment of the applicable
redemption price. Notwithstanding anything to the contrary
contained herein, a Change of Control Offer may be made in
advance of a Change of Control, conditioned upon the
consummation of such Change of Control, if a definitive
agreement is in place for the Change of Control at the time the
Change of Control Offer is made.
The definition of Change of Control includes a phrase relating
to the direct or indirect sale, lease, transfer, conveyance or
other disposition of all or substantially all of the
properties or assets of JDA and its Subsidiaries taken as a
whole. Although there is a limited body of case law interpreting
the phrase substantially all, there is no precise
established definition of the phrase under applicable law.
Accordingly, the ability of a holder of notes to require JDA to
repurchase its notes as a result of a sale, lease, transfer,
conveyance or other disposition of less than all of the assets
of JDA and its Subsidiaries taken as a whole to another Person
or group may be uncertain.
Asset
Sales
JDA will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
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(1)
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JDA (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to
the Fair Market Value (measured as of the date of the definitive
agreement with respect to such Asset Sale) of the assets or
Equity Interests issued or sold or otherwise disposed of;
provided
that consideration received from an insurer or a
governmental authority in the event of loss, damage, destruction
or condemnation shall not be subject to the requirements set
forth in this clause (1); and
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(2)
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at least 75% of the consideration received in the Asset Sale by
JDA or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this provision, each of the
following will be deemed to be cash:
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(a)
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any liabilities of JDA or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms
subordinated to the notes or any Note Guarantee) that are
assumed by the transferee of any such assets;
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(b)
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any securities, notes or other obligations received by JDA or
any such Restricted Subsidiary from such transferee that are
converted by JDA or such Restricted Subsidiary into Cash
Equivalents within 180 days after the consummation of such
Asset Sale, to the extent of the Cash Equivalents received in
that conversion;
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(c)
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any Designated Noncash Consideration received by JDA or any
Restricted Subsidiary in such Asset Sale having a Fair Market
Value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (c) that is
at the time outstanding, not to exceed $25.0 million at the
time of receipt of such Designated Noncash Consideration, with
the Fair Market Value of each item of Designated Noncash
Consideration being measured at the time received without giving
effect to subsequent changes in value; and
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(d)
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any stock or assets of the kind referred to in clauses
(2) or (4) of the next paragraph of this covenant.
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Within 365 days after the receipt of any Net Proceeds from
an Asset Sale, JDA (or the applicable Restricted Subsidiary, as
the case may be) may apply such Net Proceeds:
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(1)
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to repay (a) Indebtedness and other Obligations under a
Credit Facility, (b) other Indebtedness (other than
Subordinated Indebtedness) of JDA or any Restricted Subsidiary
that is secured by a Lien permitted by the definition of
Permitted Liens, (c) Indebtedness of a
Restricted Subsidiary that is not a Guarantor and
(d) Indebtedness ranking pari passu with the notes, and, in
each case, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect
thereto;
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(2)
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to acquire a controlling interest in another Permitted Business,
if, after giving effect to any such acquisition of Capital
Stock, the Permitted Business is or becomes a Restricted
Subsidiary of JDA;
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(3)
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to make a capital expenditure; or
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(4)
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to acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted
Business.
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Pending the final application of any Net Proceeds, JDA (or the
applicable Restricted Subsidiary) may temporarily reduce
revolving credit borrowings or otherwise invest or apply the Net
Proceeds in any manner that is not prohibited by the indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the second paragraph of this covenant
will constitute
Excess Proceeds
. When the
aggregate amount of Excess Proceeds exceeds $25.0 million,
within 30 days thereof, JDA will make an offer (an
Asset Sale Offer
) to all holders of notes
and, at JDAs option, all holders of other Indebtedness
that is
pari passu
with the notes containing provisions
similar to those set forth in the indenture with respect to
offers to purchase, prepay or redeem with the proceeds of sales
of assets to purchase, prepay or redeem the maximum principal
amount of notes and such other
pari passu
Indebtedness
(plus all accrued interest on the Indebtedness and the amount of
all fees and expenses, including premiums, incurred in
connection therewith) that may be purchased, prepaid or redeemed
out of the Excess Proceeds. The offer price in any Asset Sale
Offer will be equal to 100% of the principal amount, plus
accrued and unpaid interest and Special Interest, if any, to the
date of purchase, prepayment or redemption, subject to the
rights of holders of notes on the relevant record date to
receive interest due on the relevant interest payment date, and
will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, JDA may use those Excess
Proceeds for any purpose not otherwise prohibited by the
indenture. If the aggregate principal amount of notes and other
pari passu
Indebtedness tendered in (or required to be
prepaid or redeemed in connection with) such Asset Sale Offer
exceeds the amount of Excess Proceeds, the trustee will select
the notes and such other
pari passu
Indebtedness to be
purchased on a
pro rata
basis, based on the amounts
tendered or required to be prepaid or redeemed (with such
adjustments as may be deemed appropriate by JDA so that only
notes in denominations of $2,000, or an integral multiple of
$1,000 in excess thereof, will be purchased). Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.
JDA will comply with the requirements of
Rule 14e-1
under the Exchange Act and any other securities laws and
regulations thereunder to the extent those laws and regulations
are applicable in connection with each repurchase of notes
pursuant to a Change of Control Offer or an Asset Sale Offer. To
the extent that the provisions of any securities laws or
regulations conflict with the Change of Control or Asset Sale
provisions of the indenture, JDA will comply with the applicable
securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control or Asset
Sale provisions of the indenture by virtue of such compliance.
Future agreements governing JDAs other Indebtedness may
contain prohibitions of certain events, including events that
would constitute a Change of Control or an Asset Sale and
including repurchases of or
40
other prepayments in respect of the notes. The exercise by the
holders of notes of their right to require JDA to repurchase the
notes upon a Change of Control or an Asset Sale could cause a
default under these other agreements, even if the Change of
Control or Asset Sale itself does not, due to the financial
effect of such repurchases on JDA. In the event a Change of
Control or Asset Sale occurs at a time when JDA is prohibited
from purchasing notes, JDA could seek the consent of its lenders
to the purchase of notes or could attempt to refinance the
borrowings that contain such prohibition. If JDA does not obtain
a consent or repay those borrowings, JDA will remain prohibited
from purchasing notes. In that case, JDAs failure to
purchase tendered notes would constitute an Event of Default
under the indenture, which could, in turn, constitute a default
under the other indebtedness. Finally, JDAs ability to pay
cash to the holders of notes upon a repurchase may be limited by
JDAs then existing financial resources. See Risk
Factors Risks Related to the Notes We
May not be Able to Fulfill Our Repurchase Obligations with
Respect to the Notes Upon a Change of Control or an Asset
Sale.
Selection
and Notice
If less than all of the notes are to be redeemed at any time,
the trustee will select notes for redemption on a
pro
rata
basis (or, in the case of notes issued in global form
as discussed under Book-Entry, Delivery and
Form, based on a method that most nearly approximates a
pro rata
selection as the trustee deems fair and
appropriate) unless otherwise required by law or applicable
stock exchange or depositary requirements.
No notes of $2,000 or less can be redeemed in part. Notices of
redemption will be mailed by first class mail at least 30 but
not more than 60 days before the redemption date to each
holder of notes to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection
with a defeasance of the notes or a satisfaction and discharge
of the indenture. Notices of redemption may not be conditional.
If any note is to be redeemed in part only, the notice of
redemption that relates to that note will state the portion of
the principal amount of that note that is to be redeemed. A new
note in principal amount equal to the unredeemed portion of the
original note will be issued in the name of the holder of notes
upon cancellation of the original note. Notes called for
redemption become due on the date fixed for redemption. On and
after the redemption date, interest ceases to accrue on notes or
portions of notes called for redemption.
Certain
Covenants
Changes
in Covenants when Notes Rated Investment
Grade
If on any date following the date of the indenture:
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(1)
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the notes are rated Baa3 or better by Moodys and BBB- or
better by S&P (or, if either such entity ceases to rate the
notes for reasons outside of the control of JDA, the equivalent
investment grade credit rating from any other nationally
recognized statistical rating organization within the
meaning of
Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act selected by JDA as a replacement agency);
and
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(2)
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no Default or Event of Default shall have occurred and be
continuing,
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then, beginning on that day (the
Suspension
Date
) and subject to the provisions of the following
paragraph, the covenants specifically listed under the following
captions in this prospectus (collectively, the
Suspended Covenants
) will be suspended:
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(1)
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Repurchase at the Option of Holders
Asset Sales;
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(2)
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Restricted Payments;
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(3)
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Incurrence of Indebtedness and Issuance of
Preferred Stock;
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(4)
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Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries;
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(5)
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Designation of Restricted and Unrestricted
Subsidiaries;
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(6)
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Transactions with Affiliates;
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(7)
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clause (4) of the covenant described below under the
caption Merger, Consolidation or Sale of
Assets; and
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(8)
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Business Activities.
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During any period that the foregoing covenants have been
suspended, JDAs Board of Directors may not designate any
of its Subsidiaries as Unrestricted Subsidiaries pursuant to the
covenant described below under the caption
Designation of Restricted and Unrestricted
Subsidiaries or the second paragraph of the definition of
Unrestricted Subsidiary.
Notwithstanding the foregoing, if the rating assigned by either
such rating agency should subsequently decline to below Baa3 or
BBB-, respectively, the foregoing covenants will be reinstituted
as of and from the date of such rating decline (the
Reversion Date
), but only with respect to
events after the Reversion Date. The period of time between the
Suspension Date and the Reversion Date is referred to as the
Suspension Period
. Notwithstanding that the
Suspended Covenants may be reinstated, no default will be deemed
to have occurred as a result of a failure to comply with such
Suspended Covenants during the Suspension Period.
Calculations made after the Reversion Date of the amount
available to be made under the covenant described below under
the caption Certain Covenants
Restricted Payments will be made as if such covenant had
been in effect since the date of the indenture. Accordingly,
Restricted Payments made during the Suspension Period will be
deemed to have been permitted but will reduce the amount
available to be made as Restricted Payments under the first
paragraph of the covenant described below under the caption
Certain Covenants Restricted
Payments.
On the Reversion Date, all Indebtedness incurred during the
Suspension Period will be subject to the covenant described
under the caption Certain
Covenants Incurrence of Indebtedness and Issuance of
Preferred Stock. To the extent such Indebtedness would not
be so permitted to be incurred pursuant to such covenant, such
Indebtedness will be deemed to be Existing Indebtedness.
Notwithstanding the foregoing, neither (1) the continued
existence, after the Reversion Date, of facts and circumstances
or obligations that occurred, were incurred or otherwise came
into existence during a Suspension Period nor (2) the
performance of any such obligations, shall constitute a breach
of any Suspended Covenant or cause a Default;
provided
that (i) JDA and its Restricted Subsidiaries did not incur
or otherwise cause such facts and circumstances or obligations
to exist in anticipation of a downgrade by Moodys or
S&P (as applicable) below Baa3 or BBB-, respectively and
(ii) JDA had a good faith belief that such incurrence or
actions would not result in such withdrawal or downgrade.
There can be no assurance that the notes will ever achieve an
investment grade rating or that any such rating will be
maintained.
Restricted
Payments
JDA will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
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(1)
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declare or pay any dividend or make any other payment or
distribution on account of JDAs or any of its Restricted
Subsidiaries Equity Interests (including, without
limitation, any payment in connection with any merger or
consolidation involving JDA or any of its Restricted
Subsidiaries) or to the direct or indirect holders of JDAs
or any of its Restricted Subsidiaries Equity Interests in
their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of
JDA and dividends or distributions payable to JDA or a
Restricted Subsidiary of JDA);
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(2)
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purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving JDA) any Equity Interests of JDA;
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(3)
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make any payment or prepayment of principal, interest or
premium, if any, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness of JDA or any
Guarantor that is contractually subordinated to the notes or to
any Note Guarantee (excluding any intercompany Indebtedness
between or among JDA and any of its Restricted Subsidiaries)
prior to scheduled maturity, scheduled payment, scheduled
repayment or scheduled sinking fund thereof (except for any
purchase, redemption or defeasance made in anticipation of
satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of
such purchase, redemption or defeasance); or
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(4)
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make any Restricted Investment (all such payments and other
actions set forth in these clauses (1) through
(4) above being collectively referred to as
Restricted Payments
),
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unless, at the time of and after giving effect to such
Restricted Payment:
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(a)
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no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment;
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(b)
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JDA would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of the covenant
described below under the caption Incurrence
of Indebtedness and Issuance of Preferred Stock; and
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(c)
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such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by JDA and its Restricted
Subsidiaries since the date of the indenture (excluding
Restricted Payments permitted by clauses (2), (3), (4), (6),
(7), (8), (9), (10), or (12) of the next succeeding
paragraph), is less than the sum, without duplication, of:
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(1)
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50% of the Consolidated Net Income of JDA for the period (taken
as one accounting period) from the beginning of the first fiscal
quarter commencing after the date of the indenture to the end of
JDAs most recently ended fiscal quarter for which internal
financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit);
plus
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(2)
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100% of the aggregate net proceeds, including Cash Equivalents
and the Fair Market Value of the equity of a Person or assets
used in or constituting a Permitted Business (so long as such
equity or assets are used by or become a Restricted Subsidiary)
received by JDA since the date of the indenture (other than in
connection with the Merger) as a contribution to its common
equity capital or from the issue or sale of Qualifying Equity
Interests of JDA or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable
debt securities of JDA or a Guarantor, in each case to the
extent that (a) such Disqualified Stock or securities have
been converted into or exchanged for Qualifying Equity Interests
of JDA or (b) the amount of Indebtedness represented by
such Disqualified Stock or securities has been reduced upon such
conversion or exchange for Qualifying Equity Interests of JDA
(in each case other than Qualifying Equity Interests and
convertible or exchangeable Disqualified Stock or debt
securities sold to a Subsidiary of JDA);
plus
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(3)
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to the extent that any Restricted Investment that was made after
the date of the indenture is (a) sold for cash or otherwise
cancelled, liquidated or repaid for cash, or (b) made in an
entity that subsequently becomes a Restricted Subsidiary of JDA
that
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is a Guarantor, the return of capital with respect to such
Restricted Investment, less the cost of disposition (if any);
plus
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(4)
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to the extent that any Unrestricted Subsidiary of JDA designated
as such after the date of the indenture is redesignated as a
Restricted Subsidiary after the date of the indenture, the net
reduction of Investments (valued as provided in the definition
of Investment) with respect to such Unrestricted
Subsidiary;
plus
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(5)
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100% of any dividends received in cash by JDA or a Restricted
Subsidiary after the date of the indenture from an Unrestricted
Subsidiary of JDA, to the extent that such dividends were not
otherwise included in the Consolidated Net Income of JDA for
such period.
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The preceding provisions will not prohibit:
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(1)
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the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of
declaration of the dividend or giving of the redemption notice,
as the case may be, if at the date of declaration or notice, the
dividend or redemption payment would have complied with the
provisions of the indenture;
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(2)
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the making of any Restricted Payment in exchange for, or out of
or with the proceeds of the substantially concurrent sale (other
than to a Subsidiary of JDA) of, Equity Interests of JDA (other
than Disqualified Stock) or from the substantially concurrent
contribution of common equity capital to JDA;
provided
that the amount of any such proceeds that are utilized for any
such Restricted Payment will not be considered to be net
proceeds of Qualifying Equity Interests for purposes of clause
(c)(2) of the preceding paragraph;
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(3)
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the payment of any dividend (or, in the case of any partnership
or limited liability company, any similar distribution) by a
Restricted Subsidiary of JDA to the holders of its Equity
Interests on a
pro rata
basis;
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(4)
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the repurchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness of JDA or any Guarantor
that is contractually subordinated to the notes or to any
Note Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
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(5)
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so long as no Default or Event of Default has occurred and is
continuing, the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of JDA or any
Restricted Subsidiary of JDA held by any current or former
officer, director or employee of JDA or any of its Restricted
Subsidiaries upon their death, disability, retirement, severance
or termination of employment or service;
provided
that
the aggregate cash price paid for all such repurchased,
redeemed, acquired or retired Equity Interests may not exceed
$10.0 million in any fiscal year;
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(6)
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the repurchase of Equity Interests deemed to occur upon the
exercise of stock options to the extent such Equity Interests
represent a portion of the exercise price of those stock options
and repurchases of Equity Interests deemed to occur upon the
withholding of a portion of the Equity Interests granted or
awarded to a current or former officer, director, employee or
consultant to pay for the taxes payable by such Person upon such
grant or award (or upon vesting thereof);
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(7)
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so long as no Default or Event of Default has occurred and is
continuing, the declaration and payment of regularly scheduled
or accrued dividends to holders of any class or series of
Disqualified Stock of JDA or any preferred stock of any
Restricted Subsidiary of JDA issued on or after the date of the
indenture in accordance with the Fixed Charge Coverage Ratio
test described below under the caption
Incurrence of Indebtedness and Issuance of
Preferred Stock;
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(8)
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payments of cash, dividends, distributions, advances or other
Restricted Payments by JDA or any of its Restricted Subsidiaries
to allow the payment of cash in lieu of the issuance of
fractional shares upon (i) the exercise of options or
warrants or (ii) the conversion or exchange of Capital
Stock of any such Person;
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(9)
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so long as no Default or Event of Default has occurred and is
continuing, other Restricted Payments in an aggregate amount not
to exceed $50.0 million;
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(10)
|
any payments made in connection with the Merger pursuant to the
Merger Agreement;
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(11)
|
the repurchase, redemption or other acquisition or retirement
for value of any Indebtedness upon the occurrence of a change of
control under such Indebtedness, so long as JDA shall have
complied with its obligations described under the caption
entitled Repurchase at the Option of
Holders Change of Control; and
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(12)
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the repurchase of Capital Stock of JDA pursuant to the stock
repurchase program in effect on the date of the indenture of up
to $30.0 million.
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The amount of all Restricted Payments (other than cash) will be
the Fair Market Value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued
by JDA or such Restricted Subsidiary, as the case may be,
pursuant to the Restricted Payment. The Fair Market Value of any
assets or securities that are required to be valued by this
covenant will be determined by the Board of Directors of JDA
whose resolution with respect thereto will be delivered to the
trustee.
Incurrence
of Indebtedness and Issuance of Preferred Stock
JDA will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to
(collectively,
incur
) any Indebtedness
(including Acquired Debt), and JDA will not issue any
Disqualified Stock and will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock;
provided
that JDA may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Guarantors
may incur Indebtedness (including Acquired Debt) or issue
preferred stock, if the Fixed Charge Coverage Ratio for
JDAs most recently ended four full fiscal quarters for
which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or such preferred stock is
issued, as the case may be, would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or the Disqualified Stock or the
preferred stock had been issued, as the case may be, at the
beginning of such four-quarter period.
The first paragraph of this covenant will not prohibit the
incurrence of any of the following items of Indebtedness
(collectively,
Permitted Debt
):
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(1)
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the incurrence by JDA and any Restricted Subsidiary of
Indebtedness and letters of credit under Credit Facilities in an
aggregate principal amount (with revolving credit Indebtedness
and letters of credit being deemed to be incurred at the time
entered into and to have a principal amount equal to the maximum
potential liability of JDA and its Restricted Subsidiaries
thereunder) not to exceed the amount such that the Credit
Facility Leverage Ratio as of the date on which such
Indebtedness is incurred would have been no greater than 1.75 to
1.0
less
the aggregate amount of all Net Proceeds of
Asset Sales applied by JDA or any of its Restricted Subsidiaries
since the date of the indenture to repay any term Indebtedness
under a Credit Facility or to repay any revolving credit
Indebtedness under a Credit Facility to the extent accompanied
by a corresponding commitment reduction thereunder pursuant to
the covenant described above under the caption
Repurchase at the Option of
Holders Asset Sales;
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(2)
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the incurrence by JDA and its Restricted Subsidiaries of the
Existing Indebtedness;
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(3)
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the incurrence by JDA and the Guarantors of Indebtedness
represented by the notes and the related Note Guarantees;
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(4)
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the incurrence by JDA or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or
improvement of property, plant or equipment used in the business
of JDA or any of its Restricted Subsidiaries, in an aggregate
principal amount, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this
clause (4), not to exceed the greater of $25.0 million and
2.5% of Total Assets at any time outstanding;
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(5)
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the incurrence by JDA or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace,
defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by the indenture to be incurred
under the first paragraph of this covenant or clauses (2), (3),
(4), (5), (12), (13) or (15) of this paragraph;
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(6)
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the incurrence by JDA or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among JDA and any of its
Restricted Subsidiaries;
provided
that:
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(a)
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if JDA or any Guarantor is the obligor on such Indebtedness and
the payee is not JDA or a Guarantor, such Indebtedness must be
unsecured and expressly subordinated to the prior payment in
full in cash of all Obligations then due with respect to the
notes, in the case of JDA, or the Note Guarantee, in the
case of a Guarantor; and
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(b)
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(i) any subsequent issuance or
transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than JDA or a
Restricted Subsidiary of JDA and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not either
JDA or a Restricted Subsidiary of JDA will be deemed, in each
case, to constitute an incurrence of such Indebtedness by JDA or
such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (6);
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(7)
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the issuance by any of JDAs Restricted Subsidiaries to JDA
or to any of its Restricted Subsidiaries of shares of preferred
stock;
provided
that:
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(a)
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any subsequent issuance or transfer of Equity Interests that
results in any such preferred stock being held by a Person other
than JDA or a Restricted Subsidiary of JDA; and
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(b)
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any sale or other transfer of any such preferred stock to a
Person that is not either JDA or a Restricted Subsidiary of JDA,
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will be deemed, in each case, to constitute an issuance of such
preferred stock by such Restricted Subsidiary that was not
permitted by this clause (7);
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(8)
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the incurrence by JDA or any of its Restricted Subsidiaries of
Hedging Obligations in the ordinary course of business;
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(9)
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the guarantee by JDA or any Restricted Subsidiary of
Indebtedness of JDA or a Restricted Subsidiary to the extent
that the guaranteed Indebtedness was permitted to be incurred by
another provision of this covenant;
provided
that if the
Indebtedness being guaranteed is subordinated to or
pari
passu
with the notes, then the guarantee must be
subordinated or
pari passu,
as applicable, to the same
extent as the Indebtedness being guaranteed;
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(10)
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the incurrence by JDA or any of its Restricted Subsidiaries of
Indebtedness in respect of workers compensation claims,
health, disability or other employee benefits or property,
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46
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casualty or liability insurance, self-insurance obligations,
bankers acceptances, performance and surety bonds and
similar obligations in the ordinary course of business;
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(11)
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the incurrence by JDA or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered or extinguished within five business
days;
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(12)
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the incurrence by Foreign Subsidiaries of Indebtedness in an
aggregate principal amount at any time outstanding pursuant to
this clause (12), including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this
clause (12), not to exceed $25.0 million (or the equivalent
thereof, measured at the time of each incurrence, in the
applicable foreign currency);
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(13)
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the incurrence by JDA of Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause
(13), not to exceed $50.0 million;
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(14)
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the incurrence of Indebtedness arising from agreements of JDA or
a Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each
case incurred or assumed in connection with the acquisition or
disposition of any business, assets or Subsidiary permitted by
the indenture; and
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(15)
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the incurrence of Acquired Debt by JDA or a Restricted
Subsidiary in connection with the acquisition of
(a) Investments permitted by clause (3) in the
definition of Permitted Investments, (b) all or
substantially all of the assets of such a Person or line of
business, division or business unit within the Permitted
Business or (c) any other Permitted Business assets;
provided
that such Acquired Debt is not incurred in
connection with, or in contemplation of, such transaction;
provided, further,
on the date of the incurrence of such
Acquired Debt, after giving effect to the incurrence thereof and
otherwise determined on a pro forma basis in accordance with the
provisions set forth in the definition of Fixed Charge
Coverage Ratio, the Fixed Charge Coverage Ratio would be
the same as or greater than the Fixed Charge Coverage Ratio
immediately prior to the incurrence of such Indebtedness
(including Acquired Debt).
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JDA will not incur, and will not permit any Guarantor to incur,
any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other
Indebtedness of JDA or such Guarantor unless such Indebtedness
is also contractually subordinated in right of payment to the
notes and the applicable Note Guarantee on substantially
identical terms;
provided, however,
that no Indebtedness
will be deemed to be contractually subordinated in right of
payment to any other Indebtedness of JDA solely by virtue of
being unsecured or by virtue of being secured on a junior
priority basis.
For purposes of determining compliance with this
Incurrence of Indebtedness and Issuance of Preferred
Stock covenant, in the event that an item of Indebtedness
meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through
(15) above, or is entitled to be incurred pursuant to the
first paragraph of this covenant, JDA will be permitted to
classify such item of Indebtedness on the date of its
incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this covenant.
The accrual of interest or preferred stock dividends, the
accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the
reclassification of preferred stock as Indebtedness due to a
change in accounting principles, and the payment of dividends on
preferred stock or Disqualified Stock in the form of additional
shares of the same class of preferred stock or Disqualified
Stock will not be deemed to be an incurrence of Indebtedness or
an issuance of preferred stock or Disqualified Stock for
purposes of this covenant;
provided,
in each such case,
that the amount thereof is included in Fixed Charges of JDA as
accrued. For purposes of
47
determining compliance with any U.S. dollar-denominated
restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be utilized, calculated based on the
relevant currency exchange rate in effect on the date such
Indebtedness was incurred. Notwithstanding any other provision
of this covenant, the maximum amount of Indebtedness that JDA or
any Restricted Subsidiary may incur pursuant to this covenant
shall not be deemed to be exceeded solely as a result of
fluctuations in exchange rates or currency values.
The amount of any Indebtedness outstanding as of any date will
be:
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(1)
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the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
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(2)
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the principal amount of the Indebtedness, in the case of any
other Indebtedness; and
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(3)
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in respect of Indebtedness of another Person secured by a Lien
on the assets of the specified Person, the lesser of:
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(a)
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the Fair Market Value of such assets at the date of
determination; and
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(b)
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the amount of the Indebtedness of the other Person.
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Liens
JDA will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien of any kind securing Indebtedness or
trade payables on any asset now owned or hereafter acquired,
except Permitted Liens.
Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
JDA will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
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(1)
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pay dividends or make any other distributions on its Capital
Stock to JDA or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured
by, its profits, or pay any indebtedness owed to JDA or any of
its Restricted Subsidiaries;
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(2)
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make loans or advances to JDA or any of its Restricted
Subsidiaries; or
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(3)
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sell, lease or transfer any of its properties or assets to JDA
or any of its Restricted Subsidiaries.
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However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
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(1)
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agreements governing (a) Existing Indebtedness as in effect
on the date of the indenture and any amendments, restatements,
modifications, renewals, supplements, refundings, replacements
or refinancings of agreements governing such Existing
Indebtedness;
provided
that the amendments, restatements,
modifications, renewals, supplements, refundings, replacements
or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment
restrictions than those contained in those agreements on the
date of the indenture and (b) any other secured
Indebtedness permitted by the indenture that limits the right of
the debtor thereunder to dispose of the assets securing such
Indebtedness;
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(2)
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the indenture, the notes and the Note Guarantees;
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(3)
|
agreements governing other Indebtedness permitted to be incurred
under the provisions of the covenant described above under the
caption Incurrence of Indebtedness and
Issuance of
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48
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Preferred Stock and any amendments, restatements,
modifications, renewals, supplements, refundings, replacements
or refinancings of those agreements;
provided
that the
restrictions therein are not materially more restrictive, taken
as a whole, than those contained in the indenture, the notes and
the Note Guarantees;
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(4)
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applicable law, rule, regulation or order;
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(5)
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any encumbrance or restriction with respect to any Person or
property or assets of such Person acquired by JDA or any of its
Restricted Subsidiaries as in effect at the time of such
acquisition, which encumbrance or restriction was not incurred
in connection with or in contemplation of such acquisition, and
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so
acquired;
provided
that, in the case of Indebtedness,
such Indebtedness was permitted by the terms of the indenture to
be incurred;
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(6)
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customary non-assignment provisions in contracts and licenses
entered into in the ordinary course of business;
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(7)
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purchase money obligations for property acquired in the ordinary
course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature
described in clause (3) of the preceding paragraph;
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(8)
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any agreement for the sale or other disposition of a Subsidiary
or all or substantially all of the assets thereof that restricts
distributions by that Subsidiary or sales or transfers of assets
pending its sale or other disposition;
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(9)
|
agreements governing Permitted Refinancing Indebtedness;
provided
that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are
not materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced;
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(10)
|
Liens permitted to be incurred under the provisions of the
covenant described above under the caption
Liens that limit the right of the debtor
to dispose of the assets subject to such Liens;
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(11)
|
provisions limiting the disposition or distribution of assets or
property in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements, licenses,
sublicenses, leases, subleases and other similar agreements
(including agreements entered into in connection with a
Restricted Investment) entered into in the ordinary course of
business;
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(12)
|
restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business; and
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(13)
|
restrictions under customary provisions in partnership
agreements, limited liability company organizational or
governance documents, joint venture agreements, corporate
charters, stockholders agreements and other similar
agreements and documents on the transfer of ownership interests
in such partnership, limited liability company, joint venture or
similar Person.
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Merger,
Consolidation or Sale of Assets
JDA will not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not JDA is the
surviving corporation), or (2) sell, assign, transfer,
convey or otherwise dispose of all or
49
substantially all of the properties or assets of JDA and its
Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
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(1)
|
either: (a) JDA is the surviving corporation; or
(b) the Person formed by or surviving any such
consolidation or merger (if other than JDA) or to which such
sale, assignment, transfer, conveyance or other disposition has
been made is an entity organized or existing under the laws of
the United States, any state of the United States or the
District of Columbia; and, if such entity is not a corporation,
a co-obligor of the notes is a corporation organized or existing
under any such laws;
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(2)
|
the Person formed by or surviving any such consolidation or
merger (if other than JDA) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been
made assumes all the obligations of JDA under the notes, and the
indenture pursuant to agreements reasonably satisfactory to the
trustee;
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(3)
|
immediately after such transaction, no Default or Event of
Default exists; and
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(4)
|
either:
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(a)
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JDA or the Person formed by or surviving any such consolidation
or merger (if other than JDA), or to which such sale,
assignment, transfer, conveyance or other disposition has been
made would, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as
if the same had occurred at the beginning of the applicable
four-quarter period be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of the covenant
described above under the caption Incurrence of
Indebtedness and Issuance of Preferred Stock; or
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(b)
|
the Fixed Charge Coverage Ratio for JDA or the entity or Person
formed by or surviving such consolidation or merger, if other
than JDA, or to which such sale, assignment, transfer or other
disposition shall have been made would, immediately after giving
pro forma effect thereto and any related financing transactions
as if the same had occurred at the beginning of the applicable
four-quarter period, not be less than such Fixed Charge Coverage
Ratio for JDA immediately prior to such transaction.
|
In addition, JDA will not, directly or indirectly, lease all or
substantially all of the properties and assets of it and its
Restricted Subsidiaries, taken as a whole, in one or more
related transactions, to any other Person.
This Merger, Consolidation or Sale of Assets
covenant will not apply to any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or
among JDA and its Restricted Subsidiaries. Clauses (3) and
(4) of the first paragraph of this covenant will not apply
to (1) any merger or consolidation of JDA with or into one
of its Restricted Subsidiaries for any purpose or (2) with
or into an Affiliate solely for the purpose of reincorporating
JDA in another jurisdiction.
Transactions
with Affiliates
JDA will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate
of JDA (each, an
Affiliate Transaction
)
involving aggregate payments or consideration in excess of
$1.0 million, unless:
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(1)
|
the Affiliate Transaction is on terms that are no less favorable
to JDA or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by JDA or
such Restricted Subsidiary with an unrelated Person; and
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50
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(2)
|
JDA delivers to the trustee:
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(a)
|
with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, a resolution of the Board of
Directors of JDA set forth in an officers certificate
certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of
Directors of JDA; and
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(b)
|
with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $15.0 million, an opinion as to the fairness to
JDA or such Restricted Subsidiary of such Affiliate Transaction
from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.
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The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the
provisions of the prior paragraph:
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(1)
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any employment agreement, employee benefit plan, officer or
director indemnification agreement or any similar arrangement
entered into by JDA or any of its Restricted Subsidiaries in the
ordinary course of business and payments pursuant thereto;
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(2)
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transactions between or among JDA
and/or
its
Restricted Subsidiaries;
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(3)
|
transactions with a Person (other than an Unrestricted
Subsidiary of JDA) that is an Affiliate of JDA solely because
JDA owns, directly or through a Restricted Subsidiary, an
Investment in, or controls, such Person;
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(4)
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payment of reasonable and customary fees, reimbursements of
expenses (pursuant to indemnity arrangements or otherwise) or
other compensation (in cash or otherwise) of officers,
directors, employees or consultants of JDA or any of its
Restricted Subsidiaries;
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(5)
|
any issuance of Equity Interests (other than Disqualified Stock)
of JDA to Affiliates of JDA;
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(6)
|
Permitted Investments and Restricted Payments that do not
violate the provisions of the indenture described above under
the caption Restricted Payments;
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(7)
|
loans or advances to employees in the ordinary course of
business not to exceed $5.0 million in the aggregate at any
one time outstanding;
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(8)
|
the performance of any agreement as in effect on the date of the
indenture or the consummation of any transaction contemplated
thereby (including pursuant to any amendment thereto as long as
any such amendment is not materially adversely disadvantageous
to the holders of the notes);
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(9)
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any transaction with an Affiliate where the only consideration
paid by JDA or any Restricted Subsidiary is Equity Interests
(other than Disqualified Stock) (and any payments of cash in
lieu of delivering fractional shares in connection therewith);
and
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(10)
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any transaction with a joint venture in which JDA or a
Restricted Subsidiary is a joint venturer and no other Affiliate
is a joint venturer, or with any Subsidiary thereof or other
joint venturer therein, pursuant to the joint venture agreement
or related agreements for such joint venture, including any
transfers of any equity or ownership interests in any such joint
venture to any other joint venturer therein pursuant to the
performance or exercise of any rights or obligations to make
such transfer under the terms of the agreements governing such
joint venture.
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51
Business
Activities
JDA will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted
Businesses, except to such extent as would not be material to
JDA and its Restricted Subsidiaries taken as a whole.
Additional
Note Guarantees
If JDA or any of its Restricted Subsidiaries acquires or creates
another Domestic Subsidiary after the date of the indenture,
then that newly acquired or created Domestic Subsidiary will
become a Guarantor and execute a supplemental indenture and
deliver an opinion of counsel satisfactory to the trustee within
30 days of the date on which it was acquired or created;
provided
that any Domestic Subsidiary that constitutes an
Immaterial Subsidiary need not become a Guarantor until such
time as it ceases to be an Immaterial Subsidiary.
Designation
of Restricted and Unrestricted Subsidiaries
The Board of Directors of JDA may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation
would not cause a Default. If a Restricted Subsidiary is
designated as an Unrestricted Subsidiary, the aggregate Fair
Market Value of all outstanding Investments owned by JDA and its
Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the
time of the designation and will reduce the amount available for
Restricted Payments under the covenant described above under the
caption Restricted Payments or under one
or more clauses of the definition of Permitted Investments, as
determined by JDA. That designation will only be permitted if
the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.
Any designation of a Subsidiary of JDA as an Unrestricted
Subsidiary will be evidenced to the trustee by filing with the
trustee a certified copy of a resolution of the Board of
Directors giving effect to such designation and an
officers certificate certifying that such designation
complied with the preceding conditions and was permitted by the
covenant described above under the caption
Restricted Payments. If, at any time,
any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter
cease to be an Unrestricted Subsidiary for purposes of the
indenture and any Indebtedness of such Subsidiary will be deemed
to be incurred by a Restricted Subsidiary of JDA as of such date
and, if such Indebtedness is not permitted to be incurred as of
such date under the covenant described under the caption
Incurrence of Indebtedness and Issuance of
Preferred Stock, JDA will be in default of such covenant.
The Board of Directors of JDA may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of JDA;
provided
that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of JDA of
any outstanding Indebtedness of such Unrestricted Subsidiary,
and such designation will only be permitted if (1) such
Indebtedness is permitted under the covenant described under the
caption Incurrence of Indebtedness and
Issuance of Preferred Stock, calculated on a pro forma
basis as if such designation had occurred at the beginning of
the applicable reference period; and (2) no Default or
Event of Default would be in existence following such
designation.
Reports
Whether or not required by the rules and regulations of the SEC,
so long as any notes are outstanding, JDA will furnish to the
holders of the notes or cause the trustee to furnish to the
holders of the notes (or file with the SEC for public
availability), within 15 days after the time periods
specified in the SECs rules and regulations (after giving
effect to any extensions pursuant to
Rule 12b-25
or any successor rule or rules thereto):
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(1)
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all quarterly and annual reports that would be required to be
filed with the SEC on
Forms 10-Q
and
10-K
if
JDA were required to file such reports, including a
Managements
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52
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Discussion and Analysis of Financial Condition and Results of
Operations and, with respect to the annual information
only, a report thereon by JDAs certified independent
accountants; and
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(2)
|
all current reports that would be required to be filed with the
SEC on
Form 8-K
if JDA were required to file such reports.
|
All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to
such reports. In addition, JDA will file a copy of each of the
reports referred to in clauses (1) and (2) above with
the SEC for public availability within the time periods
specified in the rules and regulations applicable to such
reports (unless the SEC will not accept such a filing) and will
post the reports on its website within those time periods. JDA
will at all times comply with TIA § 314(a).
If, at any time after consummation of the exchange offer, JDA is
no longer subject to the periodic reporting requirements of the
Exchange Act for any reason, JDA will nevertheless continue
filing the reports specified in the preceding paragraphs of this
covenant with the SEC within the time periods specified above
unless the SEC will not accept such a filing. JDA will not take
any action for the purpose of causing the SEC not to accept any
such filings. If, notwithstanding the foregoing, the SEC will
not accept JDAs filings for any reason, JDA will post the
reports referred to in the preceding paragraphs on its website
within the time periods that would apply if JDA were required to
file those reports with the SEC.
If JDA has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then JDA will disclose in Managements
Discussion and Analysis of Financial Condition and Results of
Operations revenues for the applicable period and assets of the
applicable period then ended of the Unrestricted Subsidiaries of
JDA.
In addition, JDA and the Guarantors agree that, for so long as
any notes remain outstanding, if at any time they are not
required to file with the SEC the reports required by the
preceding paragraph, they will furnish to the holders of the
notes and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
Events of
Default and Remedies
Each of the following is an
Event of Default
:
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(1)
|
default for 30 days in the payment when due of interest on
the notes;
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(2)
|
default in the payment when due (at maturity, upon redemption,
repurchase or otherwise) of the principal of, or premium, if
any, on, the notes;
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|
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(3)
|
failure by JDA or any of its Restricted Subsidiaries to comply
with the provisions described under the caption
Certain Covenants Merger,
Consolidation or Sale of Assets;
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(4)
|
failure by JDA or any of its Restricted Subsidiaries for
30 days after notice to JDA by the trustee or the holders
of at least 25% in aggregate principal amount of the notes then
outstanding, voting as a single class, to comply with the
provisions under the captions Repurchase at
the Option of the Holders Change of Control or
Repurchase at the Option of the
Holders Asset Sales (other than a failure to
repurchase notes tendered pursuant to those covenants);
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(5)
|
failure by JDA or any of its Restricted Subsidiaries for
60 days after notice to JDA by the trustee or the holders
of at least 25% in aggregate principal amount of the notes then
outstanding voting as a single class to comply with any of the
other agreements in the indenture;
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(6)
|
default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by JDA or any of
its Restricted Subsidiaries (or the payment of which is
guaranteed by JDA or any of
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53
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|
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its Restricted Subsidiaries), whether such Indebtedness or
Guarantee now exists, or is created after the date of the
indenture, if that default:
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|
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(a)
|
is caused by a failure to pay principal of such Indebtedness
(giving effect to any applicable grace periods and extensions
thereof) (a
Payment Default
); or
|
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(b)
|
results in the acceleration of such Indebtedness prior to its
express final maturity,
|
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$25.0 million or more;
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(7)
|
failure by JDA or any of its Restricted Subsidiaries to pay
final judgments entered by a court or courts of competent
jurisdiction aggregating in excess of $25.0 million, which
judgments are not paid, discharged, stayed, satisfied, annulled
or rescinded, for a period of 60 days;
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(8)
|
except as permitted by the indenture, any Note Guarantee of
a Significant Subsidiary is held in any judicial proceeding to
be unenforceable or invalid or ceases for any reason to be in
full force and effect, or any Guarantor, or any Person acting on
behalf of any Guarantor, denies or disaffirms its obligations
under its Note Guarantee; and
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(9)
|
certain events of bankruptcy or insolvency described in the
indenture with respect to JDA or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
its Restricted Subsidiaries at the same or similar time that,
taken together, would constitute a Significant Subsidiary.
|
In the case of an Event of Default arising from certain events
of bankruptcy or insolvency with respect to JDA, any Restricted
Subsidiary of JDA that is a Significant Subsidiary or any group
of Restricted Subsidiaries of JDA at the same or similar time
that, taken together, would constitute a Significant Subsidiary,
all outstanding notes will become due and payable immediately
without further action or notice. If any other Event of Default
occurs and is continuing, the trustee or the holders of at least
25% in aggregate principal amount of the then outstanding notes
may declare all the notes to be due and payable immediately.
Notwithstanding the foregoing, the indenture will provide that,
to the extent elected by JDA, the sole remedy for an Event of
Default relating to the failure to comply with the reporting
obligations in the indenture, which are described under
Certain Covenants Reports,
will, for the 365 days after the occurrence of such an
Event of Default consist exclusively of the right to receive
additional interest on the notes at an annual rate equal to
0.50% of the principal amount of the notes. This additional
interest will be payable in the same manner and on the same
dates as the stated interest payable on the notes. The
additional interest will accrue on all outstanding notes from,
and including, the date on which an Event of Default relating to
a failure to comply with the reporting obligations in the
indenture first occurs to, but not including, the 365th day
thereafter (or such earlier date on which the Event of Default
relating to the reporting obligations shall have been cured or
waived). On such 365th day (or earlier, if an Event of Default
relating to the reporting obligations is cured or waived prior
to such 365th day), such additional interest will cease to
accrue and the notes will be subject to acceleration as provided
above. If JDA does not elect to pay additional interest during
the continuance of such an Event of Default, as applicable, in
accordance with this paragraph, the notes will be subject to
acceleration as provided above.
Subject to certain limitations, holders of a majority in
aggregate principal amount of the then outstanding notes may
direct the trustee in its exercise of any trust or power. The
trustee may withhold from holders of the notes notice of any
continuing Default or Event of Default if it determines that
withholding notice is in their interest, except a Default or
Event of Default relating to the payment of principal of,
premium on, if any, and interest.
Subject to the provisions of the indenture relating to the
duties of the trustee, in case an Event of Default occurs and is
continuing, the trustee will be under no obligation to exercise
any of the rights or powers under the indenture at the request
or direction of any holders of notes unless such holders have
offered to the trustee reasonable indemnity or security against
any loss, liability or expense. Except to enforce the
54
right to receive payment of principal, premium, if any, or
interest, when due, no holder of a note may pursue any remedy
with respect to the indenture or the notes unless:
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(1)
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such holder has previously given the trustee written notice that
an Event of Default is continuing;
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(2)
|
holders of at least 25% in aggregate principal amount of the
then outstanding notes make a written request to the trustee to
pursue the remedy;
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(3)
|
such holder or holders offer and, if requested, provide to the
trustee security or indemnity reasonably satisfactory to the
trustee against any loss, liability or expense;
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(4)
|
the trustee does not comply with such request within
60 days after receipt of the request and the offer of
security or indemnity; and
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(5)
|
during such
60-day
period, holders of a majority in aggregate principal amount of
the then outstanding notes do not give the trustee a direction
inconsistent with such request.
|
The holders of a majority in aggregate principal amount of the
then outstanding notes by written notice to the trustee may, on
behalf of the holders of all of the notes, rescind an
acceleration or waive any existing Default or Event of Default
and its consequences under the indenture, if the rescission
would not conflict with any judgment or decree, except a
continuing Default or Event of Default in the payment of
principal of, premium on, if any, or interest on, the notes.
JDA is required to deliver to the trustee annually a statement
regarding compliance with the indenture. Upon becoming aware of
any Default or Event of Default, JDA is required to deliver to
the trustee a statement specifying such Default or Event of
Default.
No
Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator or stockholder of
JDA or any Guarantor, as such, will have any liability for any
obligations of JDA or the Guarantors under the notes, the
indenture, the Note Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their
creation. Each holder of notes by accepting a note waives and
releases all such liability. The waiver and release are part of
the consideration for issuance of the notes. The waiver may not
be effective to waive liabilities under the federal securities
laws.
Legal
Defeasance and Covenant Defeasance
JDA may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an officers
certificate, elect to have all of its obligations discharged
with respect to the outstanding notes and all obligations of the
Guarantors discharged with respect to their Note Guarantees
(Legal Defeasance)
except for:
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(1)
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the rights of holders of outstanding notes to receive payments
in respect of the principal of, premium on, if any, or interest
on, such notes when such payments are due from the trust
referred to below;
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(2)
|
JDAs obligations with respect to the notes concerning
issuing temporary notes, registration of notes, mutilated,
destroyed, lost or stolen notes and the maintenance of an office
or agency for payment and money for security payments held in
trust;
|
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(3)
|
the rights, powers, trusts, duties and immunities of the trustee
under the indenture, and JDAs and the Guarantors
obligations in connection therewith; and
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(4)
|
the Legal Defeasance and Covenant Defeasance provisions of the
indenture.
|
In addition, JDA may, at its option and at any time, elect to
have the obligations of JDA and the Guarantors released with
respect to certain covenants (including its obligation to make
Change of Control
55
Offers and Asset Sale Offers) that are described in the
indenture
(Covenant Defeasance)
and
thereafter any omission to comply with those covenants will not
constitute a Default or Event of Default with respect to the
notes. In the event Covenant Defeasance occurs, all Events of
Default described under Events of Default and
Remedies (except those relating to payments on the notes
or bankruptcy, receivership, rehabilitation or insolvency
events) will no longer constitute an Event of Default with
respect to the notes.
In order to exercise either Legal Defeasance or Covenant
Defeasance:
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(1)
|
JDA must irrevocably deposit with the trustee, in trust, for the
benefit of the holders of the notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in
amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm or firm of
independent public accountants, to pay the principal of, premium
on, if any, and interest on, the outstanding notes on the stated
date for payment thereof or on the applicable redemption date,
as the case may be, and JDA must specify whether the notes are
being defeased to such stated date for payment or to a
particular redemption date;
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(2)
|
in the case of Legal Defeasance, JDA must deliver to the trustee
an opinion of counsel reasonably acceptable to the trustee
confirming that (a) JDA has received from, or there has
been published by, the Internal Revenue Service a ruling or
(b) since the date of the indenture, there has been a
change in the applicable federal income tax law, in either case
to the effect that, and based thereon such opinion of counsel
will confirm that, the holders of the outstanding notes will not
recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal
Defeasance had not occurred;
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(3)
|
in the case of Covenant Defeasance, JDA must deliver to the
trustee an opinion of counsel reasonably acceptable to the
trustee confirming that the holders of the outstanding notes
will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
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(4)
|
no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to
such deposit (and any similar concurrent deposit relating to
other Indebtedness), and the granting of Liens to secure such
borrowings);
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(5)
|
such Legal Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under, any
material agreement or instrument (other than the indenture and
the agreements governing any other Indebtedness being defeased,
discharged or replaced) to which JDA or any of the Guarantors is
a party or by which JDA or any of the Guarantors is bound;
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(6)
|
JDA must deliver to the trustee an officers certificate
stating that the deposit was not made by JDA with the intent of
preferring the holders of notes over the other creditors of JDA
with the intent of defeating, hindering, delaying or defrauding
any creditors of JDA or others; and
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(7)
|
JDA must deliver to the trustee an officers certificate
and an opinion of counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
|
Amendment,
Supplement and Waiver
Except as provided in the next three succeeding paragraphs, the
indenture or the notes or the Note Guarantees may be
amended or supplemented with the consent of the holders of at
least a majority in aggregate principal amount of the then
outstanding notes voting as a single class (including, without
56
limitation, consents obtained in connection with a tender offer
or exchange offer for, or purchase of, the notes), and any
existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium on,
if any, or interest on, the notes, except a payment default
resulting from an acceleration that has been rescinded) or
compliance with any provision of the indenture or the notes or
the Note Guarantees may be waived with the consent of the
holders of a majority in aggregate principal amount of the then
outstanding notes voting as a single class (including, without
limitation, consents obtained in connection with a purchase of,
or tender offer or exchange offer for, notes).
Without the consent of each holder of notes affected, an
amendment, supplement or waiver may not (with respect to any
notes held by a non-consenting holder):
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|
(1)
|
reduce the principal amount of notes whose holders must consent
to an amendment, supplement or waiver;
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(2)
|
reduce the principal of or change the fixed maturity of any note
or alter or waive any of the provisions with respect to the
redemption of the notes (except those provisions relating to the
covenants described above under the caption Optional
Redemption Repurchase at the Option of Holders
or Escrow of Proceeds; Special Mandatory Redemption);
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(3)
|
reduce the rate of or change the time for payment of interest,
including default interest, on any note;
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|
(4)
|
waive a Default or Event of Default in the payment of principal
of, premium on, if any, or interest on, the notes (except a
rescission of acceleration of the notes by the holders of at
least a majority in aggregate principal amount of the then
outstanding notes and a waiver of the payment default that
resulted from such acceleration);
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(5)
|
make any note payable in money other than that stated in the
notes;
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(6)
|
make any change in the provisions of the indenture relating to
waivers of past Defaults or the rights of holders of notes to
receive payments of principal of, premium on, if any, interest
or Special Interest, if any, on, the notes;
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(7)
|
waive a redemption payment with respect to any note (other than
a payment required by one of the covenants described above under
the caption Optional Redemption Repurchase at
the Option of Holders or Escrow of Proceeds; Special
Mandatory Redemption);
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(8)
|
release any Guarantor from any of its obligations under its
Note Guarantee or the indenture, except in accordance with
the terms of the indenture; or
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(9)
|
make any change in the preceding amendment and waiver provisions.
|
Notwithstanding the preceding, without the consent of any holder
of notes, JDA, the Guarantors and the trustee may amend or
supplement the indenture, the notes or the Note Guarantees:
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(1)
|
to cure any ambiguity, omission, defect or inconsistency;
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(2)
|
to provide for uncertificated notes in addition to or in place
of certificated notes;
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(3)
|
to provide for the assumption of JDAs or a
Guarantors obligations to holders of notes and
Note Guarantees in the case of a merger or consolidation or
sale of all or substantially all of JDAs or such
Guarantors assets, as applicable;
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(4)
|
to make any change that would provide any additional rights or
benefits to the holders of notes or that does not adversely
affect the legal rights under the indenture of any holder;
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(5)
|
to comply with requirements of the SEC in order to effect or
maintain the qualification of the indenture under the
Trust Indenture Act;
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(6)
|
to conform the text of the indenture, the notes, the
Note Guarantees to any provision of this Description of
Notes to the extent that such provision in this Description of
Notes was
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57
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intended to be a verbatim recitation of a provision of the
indenture, the notes, the Note Guarantees, which intent may be
evidenced by an officers certificate to that effect; and
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(7)
|
to allow any Guarantor to execute a supplemental indenture
and/or
a
Note Guarantee with respect to the Notes.
|
Satisfaction
and Discharge
The indenture will be discharged and will cease to be of further
effect as to all notes issued thereunder, when:
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(a)
|
all notes that have been authenticated, except lost, stolen or
destroyed notes that have been replaced or paid and notes for
whose payment money has been deposited in trust and thereafter
repaid to JDA, have been delivered to the trustee for
cancellation; or
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(b)
|
all notes that have not been delivered to the trustee for
cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become
due and payable within one year and JDA or any Guarantor has
irrevocably deposited or caused to be deposited with the trustee
as trust funds in trust solely for the benefit of the holders,
cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in amounts as will be sufficient, without
consideration of any reinvestment of interest, to pay and
discharge the entire Indebtedness on the notes not delivered to
the trustee for cancellation for principal of, premium on, if
any, and interest on, the notes to the date of maturity or
redemption;
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(2)
|
in respect of clause 1(b), no Default or Event of Default
has occurred and is continuing on the date of the deposit (other
than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit and any similar deposit
relating to other Indebtedness and, in each case, the granting
of Liens to secure such borrowings) and the deposit will not
result in a breach or violation of, or constitute a default
under, any other material instrument to which JDA or any
Guarantor is a party or by which JDA or any Guarantor is bound
(other than with respect to the borrowing of funds to be applied
concurrently to make the deposit required to effect such
satisfaction and discharge and any similar concurrent deposit
relating to other Indebtedness, and in each case the granting of
Liens to secure such borrowings);
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(3)
|
JDA or any Guarantor has paid or caused to be paid all sums
payable by it under the indenture; and
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(4)
|
JDA has delivered irrevocable instructions to the trustee under
the indenture to apply the deposited money toward the payment of
the notes at maturity or on the redemption date, as the case may
be.
|
In addition, JDA must deliver an officers certificate and
an opinion of counsel to the trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Concerning
the Trustee
If the trustee becomes a creditor of JDA or any Guarantor, the
indenture limits the right of the trustee to obtain payment of
claims in certain cases, or to realize on certain property
received in respect of any such claim as security or otherwise.
The trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC
for permission to continue as trustee (if the indenture has been
qualified under the Trust Indenture Act) or resign.
58
The holders of a majority in aggregate principal amount of the
then outstanding notes will have the right to direct the time,
method and place of conducting any proceeding for exercising any
remedy available to the trustee, subject to certain exceptions.
The indenture provides that in case an Event of Default has
occurred and is continuing, the trustee will be required, in the
exercise of its power, to use the degree of care of a prudent
man in the conduct of his own affairs. Subject to such
provisions, the trustee will be under no obligation to exercise
any of its rights or powers under the indenture at the request
of any holder of notes, unless such holder has offered to the
trustee reasonable indemnity or security satisfactory to it
against any loss, liability or expense.
Book-Entry,
Delivery and Form
The notes will be represented by one or more notes in
registered, global form without interest coupons (collectively,
the
Rule 144A Global Notes
). Notes
offered and sold in offshore transactions in reliance on
Regulation S were represented by one or more notes in
registered, global form without interest coupons (the
Regulation S Global Notes
and, together
with the Rule 144A Global Notes, the
Global
Notes
). Except as set forth below, the notes will be
issued in minimum denominations of $2,000 and integral multiples
of $1,000 in excess thereof.
The Global Notes were initially deposited upon issuance with the
trustee as custodian for The Depository Trust Company
(DTC)
, in New York, New York, and registered
in the name of DTC or its nominee, in each case, for credit to
an account of a direct or indirect participant in DTC as
described below. Through and including the 40th day after the
later of the commencement of the notes offering (such period
through and including such 40th day, the
Restricted
Period
), beneficial interests in the Regulation S
Global Notes may be held only through the Euroclear System
(Euroclear)
and Clearstream Banking, S.A.
(Clearstream)
(as indirect participants in
DTC), unless transferred to a person that takes delivery through
a Rule 144A Global Note in accordance with the
certification requirements described below. Beneficial interests
in the Rule 144A Global Notes may not be exchanged for
beneficial interests in the Regulation S Global Notes at
any time except in the limited circumstances described below.
See Exchanges between Regulation S Notes
and Rule 144A Notes.
Except as set forth below, the Global Notes may be transferred,
in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the
Global Notes may not be exchanged for definitive notes in
registered certificated form
(Certificated
Notes)
except in the limited circumstances described
below. See Exchange of Global Notes for
Certificated Notes. Except in the limited circumstances
described below, owners of beneficial interests in the Global
Notes will not be entitled to receive physical delivery of notes
in certificated form.
Rule 144A Notes (including beneficial interests in the
Rule 144A Global Notes) will be subject to certain
restrictions on transfer and will bear a restrictive legend as
described under Notice to Investors.
Regulation S Notes will also bear the legend as described
under Notice to Investors. In addition, transfers of
beneficial interests in the Global Notes will be subject to the
applicable rules and procedures of DTC and its direct or
indirect participants (including, if applicable, those of
Euroclear and Clearstream), which may change from time to time.
Depository
Procedures
The following description of the operations and procedures of
DTC, Euroclear and Clearstream are provided solely as a matter
of convenience. These operations and procedures are solely
within the control of the respective settlement systems and are
subject to changes by them. JDA takes no responsibility for
these operations and procedures and urges investors to contact
the system or their participants directly to discuss these
matters.
DTC has advised JDA that DTC is a limited-purpose trust company
created to hold securities for its participating organizations
(collectively, the
Participants
) and to
facilitate the clearance and settlement of transactions in those
securities between the Participants through electronic
book-entry changes in accounts of
59
its Participants. The Participants include securities brokers
and dealers (including the initial purchasers), banks, trust
companies, clearing corporations and certain other
organizations. Access to DTCs system is also available to
other entities such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly
(collectively, the
Indirect Participants
).
Persons who are not Participants may beneficially own securities
held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interests in, and transfers
of ownership interests in, each security held by or on behalf of
DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised JDA that, pursuant to procedures
established by it:
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(1)
|
upon deposit of the Global Notes, DTC will credit the accounts
of the Participants designated by the initial purchasers with
portions of the principal amount of the Global Notes; and
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|
(2)
|
ownership of these interests in the Global Notes will be shown
on, and the transfer of ownership of these interests will be
effected only through, records maintained by DTC (with respect
to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial
interest in the Global Notes).
|
Investors in the Rule 144A Global Notes who are
Participants may hold their interests therein directly through
DTC. Investors in the Rule 144A Global Notes who are not
Participants may hold their interests therein indirectly through
organizations (including Euroclear and Clearstream) which are
Participants. Investors in the Regulation S Global Notes
must initially hold their interests therein through Euroclear or
Clearstream, if they are participants in such systems, or
indirectly through organizations that are participants. After
the expiration of the Restricted Period (but not earlier),
investors may also hold interests in the Regulation S
Global Notes through Participants in the DTC system other than
Euroclear and Clearstream. Euroclear and Clearstream will hold
interests in the Regulation S Global Notes on behalf of
their participants through customers securities accounts
in their respective names on the books of their respective
depositories, which are Euroclear Bank S.A./N.V., as operator of
Euroclear, and Citibank, N.A., as operator of Clearstream. All
interests in a Global Note, including those held through
Euroclear or Clearstream, may be subject to the procedures and
requirements of DTC. Those interests held through Euroclear or
Clearstream may also be subject to the procedures and
requirements of such systems. The laws of some states require
that certain Persons take physical delivery in definitive form
of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Note to such Persons
will be limited to that extent. Because DTC can act only on
behalf of the Participants, which in turn act on behalf of the
Indirect Participants, the ability of a Person having beneficial
interests in a Global Note to pledge such interests to Persons
that do not participate in the DTC system, or otherwise take
actions in respect of such interests, may be affected by the
lack of a physical certificate evidencing such interests.
Except as described below, owners of interests in the Global
Notes will not have notes registered in their names, will not
receive physical delivery of notes in certificated form and will
not be considered the registered owners or holders
thereof under the indenture for any purpose.
Payments in respect of the principal of, premium on, if any, and
interest on, a Global Note registered in the name of DTC or its
nominee will be payable to DTC in its capacity as the registered
holder under the indenture. Under the terms of the indenture,
JDA and the trustee will treat the Persons in whose names the
notes, including the Global Notes, are registered as the owners
of the notes for the purpose of receiving payments and for all
other purposes. Consequently, neither JDA, the trustee nor any
agent of JDA or the trustee has or will have any responsibility
or liability for:
|
|
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(1)
|
any aspect of DTCs records or any Participants or
Indirect Participants records relating to or payments made
on account of beneficial ownership interest in the Global Notes
or for maintaining, supervising or reviewing any of DTCs
records or any Participants or Indirect Participants
records relating to the beneficial ownership interests in the
Global Notes; or
|
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(2)
|
any other matter relating to the actions and practices of DTC or
any of its Participants or Indirect Participants.
|
60
DTC has advised JDA that its current practice, upon receipt of
any payment in respect of securities such as the notes
(including principal and interest), is to credit the accounts of
the relevant Participants with the payment on the payment date
unless DTC has reason to believe that it will not receive
payment on such payment date. Each relevant Participant is
credited with an amount proportionate to its beneficial
ownership of an interest in the principal amount of the relevant
security as shown on the records of DTC. Payments by the
Participants and the Indirect Participants to the beneficial
owners of notes will be governed by standing instructions and
customary practices and will be the responsibility of the
Participants or the Indirect Participants and will not be the
responsibility of DTC, the trustee or JDA. Neither JDA nor the
trustee will be liable for any delay by DTC or any of the
Participants or the Indirect Participants in identifying the
beneficial owners of the notes, and JDA and the trustee may
conclusively rely on and will be protected in relying on
instructions from DTC or its nominee for all purposes.
Subject to the transfer restrictions set forth under
Notice to Investors, transfers between the
Participants will be effected in accordance with DTCs
procedures, and will be settled in
same-day
funds, and transfers between participants in Euroclear and
Clearstream will be effected in accordance with their respective
rules and operating procedures.
Subject to compliance with the transfer restrictions applicable
to the notes described herein, cross-market transfers between
the Participants, on the one hand, and Euroclear or Clearstream
participants, on the other hand, will be effected through DTC in
accordance with DTCs rules on behalf of Euroclear or
Clearstream, as the case may be, by their respective
depositaries; however, such cross-market transactions will
require delivery of instructions to Euroclear or Clearstream, as
the case may be, by the counterparty in such system in
accordance with the rules and procedures and within the
established deadlines (Brussels time) of such system. Euroclear
or Clearstream, as the case may be, will, if the transaction
meets its settlement requirements, deliver instructions to its
respective depositary to take action to effect final settlement
on its behalf by delivering or receiving interests in the
relevant Global Note in DTC, and making or receiving payment in
accordance with normal procedures for
same-day
funds settlement applicable to DTC. Euroclear participants and
Clearstream participants may not deliver instructions directly
to the depositories for Euroclear or Clearstream.
DTC has advised JDA that it will take any action permitted to be
taken by a holder of notes only at the direction of one or more
Participants to whose account DTC has credited the interests in
the Global Notes and only in respect of such portion of the
aggregate principal amount of the notes as to which such
Participant or Participants has or have given such direction.
However, if there is an Event of Default under the notes, DTC
reserves the right to exchange the Global Notes for legended
notes in certificated form, and to distribute such notes to its
Participants.
Although DTC, Euroclear and Clearstream have agreed to the
foregoing procedures to facilitate transfers of interests in the
Rule 144A Global Notes and the Regulation S Global
Notes among participants in DTC, Euroclear and Clearstream, they
are under no obligation to perform or to continue to perform
such procedures, and may discontinue such procedures at any
time. None of JDA, the trustee and any of their respective
agents will have any responsibility for the performance by DTC,
Euroclear or Clearstream or their respective participants or
indirect participants of their respective obligations under the
rules and procedures governing their operations.
Exchange
of Global Notes for Certificated Notes
A Global Note is exchangeable for Certificated Notes if:
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|
(1)
|
DTC (a) notifies JDA that it is unwilling or unable to
continue as depositary for the Global Notes or (b) has
ceased to be a clearing agency registered under the Exchange Act
and, in either case, JDA fails to appoint a successor depositary;
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|
(2)
|
JDA, at its option, notifies the trustee in writing that it
elects to cause the issuance of the Certificated Notes; or
|
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|
(3)
|
there has occurred and is continuing a Default or Event of
Default with respect to the notes.
|
61
In addition, beneficial interests in a Global Note may be
exchanged for Certificated Notes upon prior written notice given
to the trustee by or on behalf of DTC in accordance with the
indenture. In all cases, Certificated Notes delivered in
exchange for any Global Note or beneficial interests in Global
Notes will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the
depositary (in accordance with its customary procedures) and
will bear the applicable restrictive legend referred to in
Notice to Investors, unless that legend is not
required by applicable law.
Exchange
of Certificated Notes for Global Notes
Certificated Notes may not be exchanged for beneficial interests
in any Global Note unless the transferor first delivers to the
trustee a written certificate (in the form provided in the
indenture) to the effect that such transfer will comply with the
appropriate transfer restrictions applicable to such notes. See
Notice to Investors.
Exchanges
Between Regulation S Notes and Rule 144A
Notes
Prior to the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Note may be exchanged
for beneficial interests in the Rule 144A Global Note only
if:
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(1)
|
such exchange occurs in connection with a transfer of the notes
pursuant to Rule 144A; and
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(2)
|
the transferor first delivers to the trustee a written
certificate (in the form provided in the indenture) to the
effect that the notes are being transferred to a Person:
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|
(a)
|
who the transferor reasonably believes to be a qualified
institutional buyer within the meaning of Rule 144A;
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|
(b)
|
purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirements of
Rule 144A; and
|
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(c)
|
in accordance with all applicable securities laws of the states
of the United States and other jurisdictions.
|
Beneficial interests in a Rule 144A Global Note may be
transferred to a Person who takes delivery in the form of an
interest in the Regulation S Global Note, whether before or
after the expiration of the Restricted Period, only if the
transferor first delivers to the trustee a written certificate
(in the form provided in the indenture) to the effect that such
transfer is being made in accordance with Rule 903 or 904
of Regulation S or Rule 144 (if available) and that,
if such transfer occurs prior to the expiration of the
Restricted Period, the interest transferred will be held
immediately thereafter through Euroclear or Clearstream.
Transfers involving exchanges of beneficial interests between
the Regulation S Global Notes and the Rule 144A Global
Notes will be effected by DTC by means of an instruction
originated by the trustee through the DTC Deposit/Withdraw at
Custodian system. Accordingly, in connection with any such
transfer, appropriate adjustments will be made to reflect a
decrease in the principal amount of the Regulation S Global
Note and a corresponding increase in the principal amount of the
Rule 144A Global Note or vice versa, as applicable. Any
beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an
interest in the other Global Note will, upon transfer, cease to
be an interest in such Global Note and will become an interest
in the other Global Note and, accordingly, will thereafter be
subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for
so long as it remains such an interest. The policies and
practices of DTC may prohibit transfers of beneficial interests
in the Regulation S Global Note prior to the expiration of
the Restricted Period.
62
Same Day
Settlement and Payment
JDA will make payments in respect of the notes represented by
the Global Notes, including principal, premium, if any, and
interest, by wire transfer of immediately available funds to the
accounts specified by DTC or its nominee. JDA will make all
payments of principal, premium, if any, and interest, with
respect to Certificated Notes by wire transfer of immediately
available funds to the accounts specified by the holders of the
Certificated Notes or, if no such account is specified, by
mailing a check to each such holders registered address.
The notes represented by the Global Notes are expected to be
eligible to trade in The
PORTAL
sm
Market and to trade in DTCs
Same-Day
Funds Settlement System, and any permitted secondary market
trading activity in such notes will, therefore, be required by
DTC to be settled in immediately available funds. JDA expects
that secondary trading in any Certificated Notes will also be
settled in immediately available funds.
Because of time zone differences, the securities account of a
Euroclear or Clearstream participant purchasing an interest in a
Global Note from a Participant will be credited, and any such
crediting will be reported to the relevant Euroclear or
Clearstream participant, during the securities settlement
processing day (which must be a business day for Euroclear and
Clearstream) immediately following the settlement date of DTC.
DTC has advised JDA that cash received in Euroclear or
Clearstream as a result of sales of interests in a Global Note
by or through a Euroclear or Clearstream participant to a
Participant will be received with value on the settlement date
of DTC but will be available in the relevant Euroclear or
Clearstream cash account only as of the business day for
Euroclear or Clearstream following DTCs settlement date.
Certain
Definitions
Set forth below are certain defined terms used in the indenture.
Reference is made to the indenture for a full disclosure of all
defined terms used therein, as well as any other capitalized
terms used herein for which no definition is provided.
Acquired Debt
means, with respect to
any specified Person, Indebtedness of any other Person existing
at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person.
Affiliate
of any specified Person
means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition,
control, as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by
agreement or otherwise;
provided
that beneficial
ownership of 10% or more of the Voting Stock of a Person will be
deemed to be control. For purposes of this definition, the terms
controlling, controlled by and
under common control with have correlative meanings.
Applicable Premium
means, with respect
to any note on any redemption date, the greater of:
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(1)
|
1.0% of the principal amount of the note; or
|
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(2)
|
the excess of:
|
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(a)
|
the present value at such redemption date of (i) the
redemption price of the note at December 15, 2012 (such
redemption price being set forth in the table appearing above
under the caption Optional Redemption)
plus (ii) all required interest payments due on the note
through December 15, 2012 (excluding accrued but unpaid
interest to the redemption date), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50
basis points; over
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(b)
|
the principal amount of the note.
|
63
Asset Sale
means:
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(1)
|
the sale, lease, conveyance or other disposition of any assets
by JDA or any of JDAs Restricted Subsidiaries;
provided
that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of JDA and
its Restricted Subsidiaries taken as a whole will be governed by
the provisions of the indenture described above under the
caption Repurchase at the Option of
Holders Change of Control
and/or
the
provisions described above under the caption
Certain Covenants Merger, Consolidation or Sale of
Assets and not by the provisions of the Asset Sale
covenant; and
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(2)
|
the issuance of Equity Interests by any of JDAs Restricted
Subsidiaries or the sale by JDA or any of JDAs Restricted
Subsidiaries of Equity Interests in any of JDAs
Subsidiaries.
|
Notwithstanding the preceding, none of the following items will
be deemed to be an Asset Sale:
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|
(1)
|
any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than
$10.0 million;
|
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(2)
|
a transfer of assets between or among JDA and its Wholly Owned
Restricted Subsidiaries;
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(3)
|
an issuance of Equity Interests by a Restricted Subsidiary of
JDA to JDA or to a Wholly Owned Restricted Subsidiary of JDA;
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(4)
|
the sale, lease or other transfer of products, services or
accounts receivable in the ordinary course of business and any
sale or other disposition of damaged, worn-out or obsolete
assets in the ordinary course of business (including the
abandonment or other disposition of intellectual property that
is, in the reasonable judgment of JDA, no longer economically
practicable to maintain or useful in the conduct of the business
of JDA and its Restricted Subsidiaries taken as whole);
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(5)
|
licenses and sublicenses by JDA or any of its Restricted
Subsidiaries of software or intellectual property in the
ordinary course of business;
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(6)
|
any surrender or waiver of contract rights or settlement,
release, recovery on or surrender of contract, tort or other
claims in the ordinary course of business;
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(7)
|
the granting of Liens not prohibited by the covenant described
above under the caption Certain
Covenants Liens;
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(8)
|
the sale or other disposition of cash or Cash Equivalents;
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(9)
|
a Restricted Payment that does not violate the covenant
described above under the caption Certain
Covenants Restricted Payments or a Permitted
Investment; and
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(10)
|
any exchange of like property pursuant to Section 1031 of
the Internal Revenue Code of 1986, as amended, for use in a
Permitted Business.
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Asset Sale Offer
has the meaning
assigned to that term in the indenture governing the notes.
Beneficial Owner
has the meaning
assigned to such term in
Rule 13d-3
and
Rule 13d-5
under the Exchange Act, except that in calculating the
beneficial ownership of any particular person (as
that term is used in Section 13(d)(3) of the Exchange Act),
such person will be deemed to have beneficial
ownership of all securities that such person has the
right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable
only after the passage of time. The terms Beneficially
Owns and Beneficially Owned have a
corresponding meaning.
Board of Directors
means:
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(1)
|
with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on
behalf of such board;
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(2)
|
with respect to a partnership, the Board of Directors of the
general partner of the partnership;
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64
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(3)
|
with respect to a limited liability company, the managing member
or members or any controlling committee of managing members
thereof; and
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(4)
|
with respect to any other Person, the board or committee of such
Person serving a similar function.
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Capital Lease Obligation
means, at the
time any determination is to be made, the amount of the
liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof shall be
the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease
may be prepaid by the lessee without payment of a penalty.
Capital Stock
means:
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(1)
|
in the case of a corporation, corporate stock;
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(2)
|
in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
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(3)
|
in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
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(4)
|
any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding
from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any
right of participation with Capital Stock.
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Cash Equivalents
means:
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(1)
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United States dollars;
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(2)
|
securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of
the United States government (
provided
that the full
faith and credit of the United States is pledged in support of
those securities) having maturities of not more than six months
from the date of acquisition;
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(3)
|
certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers acceptances with maturities not exceeding six
months and overnight bank deposits, in each case, with any
domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of
B or better;
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(4)
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repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses
(2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause
(3) above;
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(5)
|
commercial paper having one of the two highest ratings
obtainable from Moodys or S&P and, in each case,
maturing within six months after the date of acquisition;
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(6)
|
money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses
(1) through (5) of this definition; and
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(7)
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in the case of any Foreign Subsidiary:
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(a)
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currency for the countries in which such Foreign Subsidiary
conducts business;
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(b)
|
direct obligations of the sovereign nation, or any agency
thereof, in which such Foreign Subsidiary is organized and
conducting business or in obligations fully and conditionally
guaranteed by such sovereign nation, or any agency thereof;
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(c)
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investments of the type and maturity described in clauses
(2) through (6) above of foreign obligors, which
investments or obligors have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies;
and
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65
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(d)
|
investments of the type and maturity described in clauses
(2) through (6) above of foreign obligors which
investments or obligors are not rated as provided in such
clauses or in clause (c) above but which are, in the
reasonable judgment of JDA, comparable in investment quality to
such investments and obligors, or the direct or indirect parent
of such obligors.
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Change of Control
means the occurrence
of any of the following:
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(1)
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the direct or indirect sale, lease, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of JDA and
its Subsidiaries taken as a whole to any person (as
that term is used in Section 13(d)(3) of the Exchange Act);
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(2)
|
the adoption of a plan relating to the liquidation or
dissolution of JDA;
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(3)
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the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is
that any person (as defined above) becomes the
Beneficial Owner, directly or indirectly, of more than 50% of
the Voting Stock of JDA, measured by voting power rather than
number of shares; or
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(4)
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the first day on which a majority of the members of the Board of
Directors of JDA are not Continuing Directors.
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Change of Control Offer
has the
meaning assigned to that term in the indenture governing the
notes.
Consolidated EBITDA
means, with
respect to any specified Person for any period, the Consolidated
Net Income of such Person for such period
plus,
without
duplication:
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(1)
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an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income;
plus
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(2)
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provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such
Consolidated Net Income;
plus
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(3)
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the Fixed Charges of such Person and its Restricted Subsidiaries
for such period, to the extent that such Fixed Charges were
deducted in computing such Consolidated Net Income;
plus
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(4)
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the Transaction Costs for such period, to the extent that such
Transaction Costs were deducted in computing such Consolidated
Net Income;
plus
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(5)
|
any foreign currency translation losses (including losses
related to currency remeasurements of Indebtedness) of such
Person and its Restricted Subsidiaries for such period, to the
extent that such losses were taken into account in computing
such Consolidated Net Income;
plus
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(6)
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depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash charges and
expenses (excluding any such non-cash charge or expense to the
extent that it represents an accrual of or reserve for cash
charges or expenses in any future period or amortization of a
prepaid cash charge or expense that was paid in a prior period)
of such Person and its Restricted Subsidiaries for such period
to the extent that such depreciation, amortization and other
non-cash charges or expenses were deducted in computing such
Consolidated Net Income;
minus
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(7)
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non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course
of business, in each case, on a consolidated basis and
determined in accordance with GAAP.
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66
Consolidated Net Income
means, with
respect to any specified Person for any period, the aggregate of
the net income (loss) of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis (excluding
the net income (loss) of any Unrestricted Subsidiary of such
Person), determined in accordance with GAAP and without any
reduction in respect of preferred stock dividends;
provided
that:
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(1)
|
all gains or losses realized in connection with any Asset Sale
or the disposition of securities or the early extinguishment of
Indebtedness, together with any related provision for taxes on
any such gain, will be excluded;
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(2)
|
the net income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity
method of accounting will be included only to the extent of the
amount of dividends or similar distributions paid in cash to the
specified Person or a Restricted Subsidiary of the Person;
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(3)
|
the net income (but not loss) of any Restricted Subsidiary will
be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary
of that net income is not at the date of determination permitted
without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders;
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(4)
|
the cumulative effect of a change in accounting principles will
be excluded; and
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(5)
|
non-cash gains and losses attributable to movement in the
mark-to-market
valuation of Hedging Obligations pursuant to Financial
Accounting Standards Board Statement No. 133 will be
excluded.
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continuing
means, with respect to any
Default or Event of Default, that such Default or Event of
Default has not been cured or waived.
Continuing Directors
means, as of any
date of determination, any member of the Board of Directors of
JDA who:
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(1)
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was a member of such Board of Directors on the date that is two
years prior to the date of determination; or
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(2)
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was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such
nomination or election.
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Credit Agreement
means that certain
Credit Agreement, dated as of July 5, 2006, among JDA,
Manugistics Group, Inc., the lenders from time to time party
thereto, Citicorp North America, Inc., as Administrative Agent
and Collateral Agent, Citibank, N.A., as Issuing Bank, UBS
Securities LLC, as Syndication Agent and Wells Fargo Foothill,
LLC, as Documentation Agent, as amended.
Credit Facilities
means (i) one
or more debt facilities or commercial paper facilities, in each
case, with banks or other institutional lenders providing for
revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit and
(ii) sales of debt securities to institutional investors,
in each case, as amended, restated, modified, renewed, refunded,
replaced in any manner (whether upon or after termination or
otherwise) or refinanced in whole or in part from time to time.
Credit Facility Indebtedness
means
Indebtedness under Credit Facilities that was permitted by the
terms of the indenture to be incurred pursuant to clause
(1) of the definition of Permitted Debt.
Credit Facility Leverage Ratio
means,
as of any date of determination, the ratio of (i) Credit
Facility Indebtedness as of such date (giving pro forma effect
to any Credit Facility Indebtedness to be incurred on such date
and the application of the net proceeds therefrom) to
(ii) Consolidated EBITDA for the most recently completed
four fiscal quarter period for which financial statements are
available.
67
In addition, for purposes of calculating the Credit Facility
Leverage Ratio:
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(1)
|
acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted
Subsidiaries acquired by the specified Person or any of its
Restricted Subsidiaries, and including all related financing
transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Calculation Date, or that are to be made on the Calculation
Date, will be given pro forma effect (in accordance with
Regulation S-X
under the Securities Act), including Pro Forma Cost Savings
whether or not such Pro Forma Cost Savings comply with
Regulation S-X,
as if they had occurred on the first day of the four-quarter
reference period;
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(2)
|
the Consolidated EBITDA attributable to discontinued operations,
as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior
to the Calculation Date, will be excluded;
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(3)
|
any Person that is a Restricted Subsidiary on the Calculation
Date will be deemed to have been a Restricted Subsidiary at all
times during such four-quarter period; and
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(4)
|
any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period.
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Default
means any event that is, or
with the passage of time or the giving of notice or both would
be, an Event of Default.
Designated Noncash Consideration
means
the Fair Market Value of non-cash consideration received by JDA
or any Restricted Subsidiary in connection with an Asset Sale
that is so designated as Designated Noncash Consideration
pursuant to an officers certificate delivered to the
trustee, setting forth the basis of such value.
Disqualified Stock
means any Capital
Stock that, by its terms (or by the terms of any security into
which it is convertible, or for which it is exchangeable, in
each case, at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder of the Capital Stock,
in whole or in part, on or prior to the date that is
91 days after the date on which the notes mature.
Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders
of the Capital Stock have the right to require JDA to repurchase
such Capital Stock upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the
terms of such Capital Stock provide that JDA may not repurchase
or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with the covenant
described above under the caption Certain
Covenants Restricted Payments. The amount of
Disqualified Stock deemed to be outstanding at any time for
purposes of the indenture will be the maximum amount that JDA
and its Restricted Subsidiaries may become obligated to pay upon
the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued
dividends. The Series A preferred stock issued pursuant to
the Rights Agreement between JDA and ChaseMellon Shareholder
Services, as Rights Agent, dated October 2, 1998, as
amended through the date of the indenture, shall not be deemed
to be Disqualified Stock.
Domestic Subsidiary
means any
Restricted Subsidiary of JDA that was formed under the laws of
the United States or any state of the United States or the
District of Columbia or that guarantees or otherwise provides
direct credit support for any Indebtedness of JDA.
Equity Interests
means Capital Stock
and all warrants, options or other rights to acquire Capital
Stock (but excluding any debt security that is convertible into,
or exchangeable for, Capital Stock).
Equity Offering
means a sale of Equity
Interests of JDA by JDA (other than Disqualified Stock and other
than to a Subsidiary of JDA).
68
Existing Indebtedness
means all
Indebtedness of JDA and its Subsidiaries (other than
Indebtedness under the Credit Agreement, except for letters of
credit that are cash collateralized on or prior to the date of
the indenture) in existence on the date of the indenture, until
such amounts are repaid.
Fair Market Value
means the value that
would be paid by a willing buyer to an unaffiliated willing
seller in a transaction not involving distress or necessity of
either party, determined in good faith by the Board of Directors
of JDA (unless otherwise provided in the indenture).
Fixed Charge Coverage Ratio
means with
respect to any specified Person for any period, the ratio of the
Consolidated EBITDA of such Person for such period to the Fixed
Charges of such Person for such period. In the event that the
specified Person or any of its Restricted Subsidiaries incurs,
assumes, guarantees, repays, repurchases, redeems, defeases or
otherwise discharges any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated and on
or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the
Calculation Date
), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect (in
accordance with
Regulation S-X
under the Securities Act) to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or
other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds
therefrom, as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
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(1)
|
acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted
Subsidiaries acquired by the specified Person or any of its
Restricted Subsidiaries, and including all related financing
transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Calculation Date, or that are to be made on the Calculation
Date, will be given pro forma effect (in accordance with
Regulation S-X
under the Securities Act), including Pro Forma Cost Savings
whether or not such Pro Forma Cost Savings comply with
Regulation S-X,
as if they had occurred on the first day of the four-quarter
reference period;
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(2)
|
the Consolidated EBITDA attributable to discontinued operations,
as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior
to the Calculation Date, will be excluded;
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(3)
|
the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date;
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(4)
|
any Person that is a Restricted Subsidiary on the Calculation
Date will be deemed to have been a Restricted Subsidiary at all
times during such four-quarter period;
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(5)
|
any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
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(6)
|
if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if
the rate in effect on the Calculation Date had been the
applicable rate for the entire period (taking into account any
Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term as at the Calculation
Date in excess of 12 months).
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69
Fixed Charges
means, with respect to
any specified Person for any period, the sum, without
duplication, of:
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(1)
|
the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued, including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment
obligations, the interest component of all payments associated
with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or
bankers acceptance financings, and net of the effect of
all payments made or received pursuant to Hedging Obligations in
respect of interest rates;
plus
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(2)
|
the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
plus
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(3)
|
any interest on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its
Restricted Subsidiaries, whether or not such Guarantee or Lien
is called upon;
plus
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(4)
|
the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than
dividends on Equity Interests payable solely in Equity Interests
of JDA (other than Disqualified Stock) or to JDA or a Restricted
Subsidiary of JDA,
times
(b) a fraction, the
numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in
each case, determined on a consolidated basis in accordance with
GAAP.
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Foreign Subsidiary
means any
Restricted Subsidiary of JDA that is not a Domestic Subsidiary.
GAAP
means generally accepted
accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity
as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the indenture.
Guarantee
means a guarantee other than
by endorsement of negotiable instruments for collection in the
ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or
through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising
by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take or pay or to maintain financial statement conditions or
otherwise).
Guarantors
means any Subsidiary of JDA
that executes a Note Guarantee in accordance with the
provisions of the indenture, and their respective successors and
assigns, in each case, until the Note Guarantee of such
Person has been released in accordance with the provisions of
the indenture.
Hedging Obligations
means, with
respect to any specified Person, the obligations of such Person
under:
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|
(1)
|
interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
|
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(2)
|
other agreements or arrangements designed to manage interest
rates or interest rate risk; and
|
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(3)
|
other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates or commodity
prices.
|
Immaterial Subsidiary
means, as of any
date, any Subsidiary whose total assets, as of that date, are
less than $250,000 and whose total revenues for the most recent
12-month
period do not exceed $250,000;
70
provided
that a Subsidiary will not be considered to be
an Immaterial Subsidiary if it, directly or indirectly,
guarantees or otherwise provides direct credit support for any
Indebtedness of JDA.
Indebtedness
means, with respect to
any specified Person, any indebtedness of such Person (excluding
accrued expenses, trade payables and time-based licenses),
whether or not contingent:
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(1)
|
in respect of borrowed money;
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|
(2)
|
evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect
thereof);
|
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(3)
|
in respect of bankers acceptances;
|
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|
(4)
|
representing Capital Lease Obligations;
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(5)
|
representing the balance deferred and unpaid of the purchase
price of any property or services due more than nine months
after such property is acquired or such services are completed;
or
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(6)
|
representing any Hedging Obligations,
|
if and to the extent any of the preceding items (other than
letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared
in accordance with GAAP. In addition, the term
Indebtedness includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether
or not such Indebtedness is assumed by the specified Person)
and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.
Indebtedness shall be calculated without giving effect to the
effects of Statement of Financial Accounting Standards
No. 133 and related interpretations to the extent such
effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under the indenture as a result of
accounting for any embedded derivatives created by the terms of
such Indebtedness.
Investments
means, with respect to any
Person, all direct or indirect investments by such Person in
other Persons (including Affiliates) in the forms of loans
(including Guarantees or other obligations), advances or capital
contributions (excluding commission, payroll, travel, moving and
similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be
classified as investments on a balance sheet prepared in
accordance with GAAP. If JDA or any Restricted Subsidiary of JDA
sells or otherwise disposes of any Equity Interests of any
direct or indirect Restricted Subsidiary of JDA such that, after
giving effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary of JDA, JDA will be deemed to
have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of JDAs
Investments in such Subsidiary that were not sold or disposed of
in an amount determined as provided in the final paragraph of
the covenant described above under the caption
Certain Covenants Restricted
Payments. The acquisition by JDA or any Restricted
Subsidiary of JDA of a Person that holds an Investment in a
third Person will be deemed to be an Investment by JDA or such
Restricted Subsidiary in such third Person in an amount equal to
the Fair Market Value of the Investments held by the acquired
Person in such third Person in an amount determined as provided
in the final paragraph of the covenant described above under the
caption Certain Covenants
Restricted Payments. Except as otherwise provided in the
indenture, the amount of an Investment will be determined at the
time the Investment is made and without giving effect to
subsequent changes in value.
Lien
means, with respect to any asset,
any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
Merger
means that certain merger of
Alpha Acquisition Corp. with and into i2 Technologies, Inc.
pursuant to the Merger Agreement.
71
Merger Agreement
means that certain
Agreement and Plan of Merger dated as of November 4, 2009,
by and among JDA, Alpha Acquisition Corp. and i2 Technologies,
Inc., together with any amendments, modifications and waivers
that are not, in the good faith determination of the Board of
Directors of JDA, individually or in the aggregate, materially
adverse to the holders of the notes.
Moodys
means Moodys
Investors Service, Inc.
Net Proceeds
means the aggregate cash
proceeds and Cash Equivalents received by JDA or any of its
Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of the direct costs relating to
such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions,
and any relocation expenses incurred as a result of the Asset
Sale, taxes paid or payable as a result of the Asset Sale, in
each case, after taking into account any available tax credits
or deductions and any tax sharing arrangements and any reserve
for adjustment or indemnification obligations in respect of the
sale price of such asset or assets established in accordance
with GAAP.
Non-Recourse Debt
means Indebtedness:
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(1)
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as to which neither JDA nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) or (b) is directly or indirectly liable as a
guarantor or otherwise; and
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(2)
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no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time
or both any holder or holders of any other Indebtedness (other
than the notes) of JDA or any Restricted Subsidiary in an
aggregate principal amount of $25.0 million or more to
declare a default on the other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated
maturity.
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Note Guarantee
means the
Guarantee by each Guarantor of JDAs obligations under the
indenture and the notes, executed pursuant to the provisions of
the indenture.
Obligations
means any principal,
interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation
governing any Indebtedness.
Permitted Business
means any business
that is the same as, or reasonably related, ancillary or
complementary to, or reasonable extensions of, any of the
businesses in which JDA, i2 Technologies, Inc. or any of their
respective Subsidiaries are engaged on the date of the indenture.
Permitted Investments
means:
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(1)
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any Investment in JDA or in a Restricted Subsidiary of JDA;
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(2)
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any Investment in Cash Equivalents;
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(3)
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any Investment by JDA or any Restricted Subsidiary of JDA in a
Person, if as a result of such Investment:
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(a)
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such Person becomes a Restricted Subsidiary of JDA; or
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(b)
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such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or
is liquidated into, JDA or a Restricted Subsidiary of JDA;
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(4)
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any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and
in compliance with the covenant described above under the
caption Repurchase at the Option of
Holders Asset Sales or any other disposition
of assets not constituting an Asset Sale;
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(5)
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any Investment made solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of JDA;
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72
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(6)
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any Investments received in compromise or resolution of
(A) obligations that were incurred in the ordinary course
of business of JDA or any of its Restricted Subsidiaries,
including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or
other disputes;
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(7)
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Investments represented by Hedging Obligations;
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(8)
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loans or advances to employees made in the ordinary course of
business of JDA or any Restricted Subsidiary of JDA in an
aggregate principal amount not to exceed $5.0 million at
any one time outstanding;
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(9)
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repurchases of the notes;
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(10)
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any guarantee of Indebtedness permitted to be incurred by the
covenant entitled Certain
Covenants Incurrence of Indebtedness and Issuance of
Preferred Stock other than a guarantee of Indebtedness of
an Affiliate of JDA that is not a Restricted Subsidiary of JDA;
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(11)
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any Investment existing on, or made pursuant to binding
commitments existing on, the date of the indenture and any
Investment consisting of an amendment, restatement, supplement,
refunding, replacement, refinancing, extension, modification,
renewal or exchange of any Investment existing on, or made
pursuant to a binding commitment existing on, the date of the
indenture;
provided
that the amount of any such
Investment may be increased (a) as required by the terms of
such Investment as in existence on the date of the indenture or
(b) as otherwise permitted under the indenture;
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(12)
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Investments acquired after the date of the indenture as a result
of the acquisition by JDA or any Restricted Subsidiary of JDA of
another Person, including by way of a merger, amalgamation or
consolidation with or into JDA or any of its Restricted
Subsidiaries in a transaction that is not prohibited by the
covenant described above under the caption
Merger, Consolidation or Sale of Assets
after the date of the indenture to the extent that such
Investments were not made in contemplation of such acquisition,
merger, amalgamation or consolidation and were in existence on
the date of such acquisition, merger, amalgamation or
consolidation;
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(13)
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other Investments in any Person having an aggregate Fair Market
Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when
taken together with all other Investments made after the date of
the indenture pursuant to this clause (13) that are at the
time outstanding not to exceed the greater of $25.0 million
and 2.5% of Total Assets (taking into account any return on such
Investments by reducing the amount of such Investments deemed
outstanding hereunder);
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(14)
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Investments in Permitted Joint Ventures that are at the time
outstanding not to exceed the greater of $25.0 million and
2.5% of Total Assets (taking into account any return on such
Investments by reducing the amount of such Investments deemed
outstanding hereunder);
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(15)
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receivables owing to JDA or any Restricted Subsidiary if created
or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
provided
that such trade terms may include such
concessionary trade terms as JDA or such Restricted Subsidiary
deems reasonable under the circumstances;
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(16)
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Investments consisting of licensing or contribution of
intellectual property pursuant to joint development, marketing,
manufacturing or similar agreements with other Persons;
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(17)
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Investments arising from the cashless exercise by employees of
JDA or any Restricted Subsidiary of rights, options or warrants
to purchase Capital Stock of JDA;
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(18)
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lease, utility and similar deposits made in the ordinary course
of business;
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(19)
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Investments representing amounts held for employees of JDA or
any Restricted Subsidiary under deferred compensation plans; and
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(20)
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Investments made in the form of a loan to a Person pending the
acquisition of the Capital Stock or all or substantially all of
the assets or a line of business of such Person (regardless of
how structured) following the execution of a definitive
agreement in respect of such acquisition.
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Permitted Joint Venture
means any
entity characterized as a joint venture, however structured,
engaged in a Permitted Business in which JDA or any Restricted
Subsidiary has an ownership interest;
provided
that such
joint venture is not a Subsidiary of JDA.
Permitted Liens
means:
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(1)
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Liens on assets of JDA or any Restricted Subsidiary securing
Indebtedness and other Obligations under Credit Facilities that
was permitted by the terms of the indenture to be incurred
pursuant to clause (1) of the definition of Permitted
Debt
and/or
securing Hedging Obligations
and/or
securing Obligations with regard to Treasury Management
Arrangements;
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(2)
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Liens in favor of JDA or any Restricted Subsidiary;
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(3)
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Liens on property of a Person existing at the time such Person
becomes a Restricted Subsidiary of JDA or is merged with or into
or consolidated with JDA or any Restricted Subsidiary of JDA;
provided
that such Liens were not incurred in
contemplation of such Person becoming a Restricted Subsidiary of
JDA or such merger or consolidation and do not extend to any
assets other than those of the Person that becomes a Restricted
Subsidiary of JDA or is merged with or into or consolidated with
JDA or any Restricted Subsidiary of JDA;
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(4)
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Liens on property (including Capital Stock) existing at the time
of acquisition of the property by JDA or any Subsidiary of JDA;
provided
that such Liens were in existence prior to such
acquisition and not incurred in contemplation of, such
acquisition;
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(5)
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Liens to secure the performance of statutory or regulatory
obligations, insurance, surety or appeal bonds, workers
compensation, unemployment insurance, social security or similar
obligations, performance bonds, deposits to secure the
performance of tenders, bids, trade contracts, government
contracts, import duties, payment of rent, performance, letters
of credit and
return-of-money
bonds, leases or licenses or other obligations of a like nature
incurred in the ordinary course of business;
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(6)
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Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of the second
paragraph of the covenant entitled Certain
Covenants Incurrence of Indebtedness and Issuance
of Preferred Stock covering only the assets acquired with
or financed by such Indebtedness;
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(7)
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Liens existing on the date of the indenture;
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(8)
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Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent, that are not subject to penalties
or interest for non-payment or that are being contested in good
faith by appropriate proceedings;
provided
that any
reserve or other appropriate provision as is required in
conformity with GAAP has been made therefor;
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(9)
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Liens imposed by law, such as carriers,
warehousemens, landlords, mechanics,
materialmens, repairmens, suppliers or similar
Liens, in each case, incurred in the ordinary course of business;
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(10)
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survey exceptions, easements or reservations of, or rights of
others for, licenses,
rights-of-way,
sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use
of real property that were not incurred in
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connection with Indebtedness and that (a) do not in the
aggregate materially adversely affect the value of said
properties or (b) do not materially impair their use in the
operation of JDA and its Restricted Subsidiaries taken as a
whole;
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(11)
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Liens created for the benefit of (or to secure) the notes (or
the Note Guarantees);
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(12)
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Liens to secure any Permitted Refinancing Indebtedness permitted
to be incurred under the indenture;
provided
that:
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(a)
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the new Lien is limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to
which the original Lien arose, could secure, the original Lien
(plus improvements and accessions to, such property or proceeds
or distributions thereof); and
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(b)
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the Indebtedness secured by the new Lien is not increased to any
amount greater than the sum of (x) the outstanding
principal amount, or, if greater, committed amount, of the
Indebtedness renewed, refunded, refinanced, replaced, defeased
or discharged with such Permitted Refinancing Indebtedness and
(y) an amount necessary to pay any fees and expenses,
including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
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(13)
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Liens on insurance policies and proceeds thereof, or other
deposits to secure liability to insurance carriers;
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(14)
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filing of Uniform Commercial Code financing statements as a
precautionary measure in connection with leases;
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(15)
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bankers Liens, rights of setoff, Liens arising out of
judgments or awards not constituting an Event of Default and
notices of
lis pendens
and associated rights related to
litigation being contested in good faith by appropriate
proceedings and for which adequate reserves have been made;
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(16)
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Liens on cash, Cash Equivalents or other property arising in
connection with the defeasance, discharge or redemption of
Indebtedness;
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(17)
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Liens on specific items of inventory or other goods (and the
proceeds thereof) of any Person securing such Persons
obligations in respect of bankers acceptances issued or
created in the ordinary course of business;
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(18)
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grants of software and other technology licenses or sublicenses
in the ordinary course of business;
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(19)
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Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods
entered into in the ordinary course of business;
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(20)
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Liens incurred with respect to obligations of JDA or any of its
Restricted Subsidiaries that do not exceed $50.0 million at
any one time outstanding;
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(21)
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Liens securing Indebtedness permitted by clause (12),
(14) and (15) (to the extent the Liens were in existence on
the date of incurrence of the Acquired Debt and not incurred in
connection with, or in contemplation of, the incurrence of the
Acquired Debt) of the definition of Permitted Debt;
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(22)
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Liens in favor of customs and revenue authorities to secure
payment of customs duties in connection with the importation of
goods in the ordinary course of business and other similar Liens
arising in the ordinary course of business; and
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(23)
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leases or subleases granted in the ordinary course to third
Persons not materially interfering with the business of JDA and
its Restricted Subsidiaries taken as a whole.
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75
Permitted Refinancing Indebtedness
means any Indebtedness of JDA or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of
which are used to renew, refund, refinance, replace, defease or
discharge other Indebtedness of JDA or any of its Restricted
Subsidiaries (other than intercompany Indebtedness);
provided
that:
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(1)
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the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness
renewed, refunded, refinanced, replaced, defeased or discharged
(plus all accrued interest on the Indebtedness and the amount of
all fees and expenses, including premiums, incurred in
connection therewith);
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(2)
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such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted
Average Life to Maturity that is (a) equal to or greater
than the Weighted Average Life to Maturity of, the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or
discharged or (b) more than 90 days after the final
maturity date of the notes;
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(3)
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if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged is subordinated in right of
payment to the notes, such Permitted Refinancing Indebtedness is
subordinated in right of payment to the notes on terms at least
as favorable to the holders of notes as those contained in the
documentation governing the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged; and
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(4)
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such Indebtedness is incurred by JDA, a Guarantor or the
Restricted Subsidiary of JDA that was the obligor on the
Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged and, in the case of Indebtedness incurred
by a Restricted Subsidiary that is not a Guarantor, is
guaranteed only by Persons who were obligors on the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or
discharged.
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Person
means any individual,
corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
Pro Forma Cost Savings
means, with
respect to any period, the reduction in net costs and related
adjustments that (i) were directly attributable to an
acquisition that occurred during the four quarter period or
after the end of the four quarter period and on or prior to the
Calculation Date and calculated on a basis that is consistent
with
Regulation S-X
under the Securities Act as then in effect, (ii) were
actually implemented by the business that was the subject of any
such acquisition within six months after the date of the
acquisition and prior to the Calculation Date that are
supportable and quantifiable by the underlying accounting
records of such business or (iii) relate to the business
that is the subject of any such acquisition and that the Company
reasonably determines are probable based upon specifically
identifiable actions to be taken within six months of the date
of the acquisition and, in the case of each of (i),
(ii) and (iii), are described, as provided below in an
Officers Certificate, as if all such reductions in costs
had been effected as of the beginning of such period. Pro Forma
Cost Savings described above shall be accompanied by a
certificate delivered to the Trustee from the Companys
chief financial officer that outlines the specific actions taken
or to be taken, the net cost savings achieved or to be achieved
from each such action and that, in the case of clause
(iii) above, such savings have been determined to be
probable.
Qualifying Equity Interests
means
Equity Interests of JDA other than (1) Disqualified Stock
and (2) Equity Interests sold in an Equity Offering prior
to the third anniversary of the date of the indenture that are
eligible to be used to support an optional redemption of notes
pursuant to the Optional Redemption provisions of
the indenture.
Restricted Investment
means an
Investment other than a Permitted Investment.
Restricted Subsidiary
of a Person
means any Subsidiary of such Person that is not an Unrestricted
Subsidiary.
S&P
means Standard &
Poors Ratings Group.
76
Significant Subsidiary
means any
Restricted Subsidiary that would be a significant
subsidiary as defined in Article 1,
Rule 1-02
of
Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date of the indenture.
Stated Maturity
means, with respect to
any installment of interest or principal on any series of
Indebtedness, the date on which the payment of interest or
principal was scheduled to be paid in the documentation
governing such Indebtedness as of the date of the indenture, and
will not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
Subsidiary
means, with respect to any
specified Person:
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(1)
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any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any
contingency and after giving effect to any voting agreement or
stockholders agreement that effectively transfers voting
power) to vote in the election of directors, managers or
trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
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(2)
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any partnership or limited liability company of which
(a) more than 50% of the capital accounts, distribution
rights, total equity and voting interests or general and limited
partnership interests, as applicable, are owned or controlled,
directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof,
whether in the form of membership, general, special or limited
partnership interests or otherwise, and (b) such Person or
any Subsidiary of such Person is a controlling general partner
or otherwise controls such entity.
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Total Assets
means the total assets of
JDA and its Subsidiaries on a consolidated basis determined in
accordance with GAAP, as shown on the most recently available
consolidated balance sheet of JDA and its Subsidiaries.
Transaction Costs
means costs and fees
incurred by JDA pursuant to (a) the Merger and related
financings, (b) any acquisition of (i) Investments
permitted by clause (3) in the definition of
Permitted Investments, (ii) all or
substantially all of the assets of such a Person or line of
business, division or business unit within the Permitted
Business or (iii) any other Permitted Business assets, in
each case however consummated, if the acquisition does not
violate the covenant described under the caption entitled
Certain Covenants Restricted
Payments or (c) any Asset Sale if such Asset Sale
does not violate the Asset Sale provisions of the
indenture.
Treasury Management Arrangement
means
any agreement or other arrangement governing the provision of
treasury or cash management services, including deposit
accounts, overdraft, credit or debit card, funds transfer,
automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account
reconciliation and reporting and trade finance services and
other cash management services.
Treasury Rate
means, as of any
redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become
publicly available at least two business days prior to the
redemption date (or, if such Statistical Release is no longer
published, any publicly available source of similar market
data)) most nearly equal to the period from the redemption date
to December 15, 2012;
provided
that if the period
from the redemption date to December 15, 2012, is less than
one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of
one year will be used.
77
Unrestricted Subsidiary
means any
Subsidiary of JDA that is designated by the Board of Directors
of JDA as an Unrestricted Subsidiary pursuant to a resolution of
the Board of Directors, but only to the extent that such
Subsidiary:
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(1)
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has no Indebtedness other than Non-Recourse Debt;
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(2)
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except as permitted by the covenant described above under the
caption Certain Covenants Transactions
with Affiliates, is not party to any agreement, contract,
arrangement or understanding with JDA or any Restricted
Subsidiary of JDA unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to
JDA or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of JDA;
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(3)
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is a Person with respect to which neither JDA nor any of its
Restricted Subsidiaries has any direct or indirect obligation
(a) to subscribe for additional Equity Interests or
(b) to maintain or preserve such Persons financial
condition or to cause such Person to achieve any specified
levels of operating results; and
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(4)
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has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of JDA or any of its
Restricted Subsidiaries;
provided
that JDA and its
Restricted Subsidiaries may guarantee the performance of
Unrestricted Subsidiaries in the ordinary course of business
except for guarantees of Indebtedness.
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Voting Stock
of any specified Person
as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of
Directors of such Person.
Weighted Average Life to Maturity
means, when applied to any Indebtedness at any date, the number
of years obtained by dividing:
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(1)
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the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness, by
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making
of such payment;
by
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(2)
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the then outstanding principal amount of such Indebtedness.
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Wholly Owned Restricted Subsidiary
of
any specified Person means a Restricted Subsidiary of such
Person all of the outstanding Capital Stock or other ownership
interests of which (other than directors qualifying
shares) will at the time be owned by such Person or by one or
more Wholly Owned Restricted Subsidiaries of such Person.
78
MATERIAL
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material United States federal
income tax consequences relating to the exchange of old notes
for exchange notes in the exchange offer. It does not contain a
complete analysis of all of the potential tax consequences
relating to the exchange. This summary is limited to holders of
old notes who hold the old notes as capital assets
(in general, assets held for investment). Special situations,
such as the following, are not addressed:
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tax consequences to holders who may be subject to special tax
treatment, such as tax-exempt entities, dealers in securities or
currencies, banks, other financial institutions, insurance
companies, regulated investment companies, traders in securities
that elect to use a
mark-to-market
method of accounting for their securities holdings or
corporations that accumulate earnings to avoid United States
federal income tax;
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tax consequences to persons holding notes as part of a hedging,
integrated, constructive sale or conversion transaction or a
straddle or other risk reduction transaction;
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tax consequences to holders whose functional
currency is not the United States dollar;
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tax consequences to persons who hold notes through a partnership
or similar pass-through entity;
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United States federal gift tax, estate tax or alternative
minimum tax consequences, if any; or
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any state, local or
non-United
States tax consequences.
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We recommend that each holder consult its own tax advisor as to
the particular tax consequences of exchanging old notes for
exchange notes in the exchange offer, including the
applicability and effect of any state, local or
non-United
States tax law.
The discussion below is based upon the provisions of the United
States Internal Revenue Code of 1986, as amended, existing and
proposed Treasury regulations promulgated thereunder, and
rulings, judicial decisions and administrative interpretations
thereunder, as of the date hereof. Those authorities may be
changed, perhaps retroactively, so as to result in United States
federal income tax consequences different from those discussed
below.
Consequences
of Tendering Old Notes
The exchange of old notes for exchange notes pursuant to the
exchange offer should not constitute an exchange for
United States federal income tax purposes because the exchange
notes should not be considered to differ materially in kind or
extent from the old notes. Rather, the exchange notes received
by a holder should be treated as a continuation of the old notes
in the hands of such holder. Accordingly, there should be no
United States federal income tax consequences to holders
exchanging old notes for exchange.
79
PLAN OF
DISTRIBUTION
Each broker-dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it
will deliver a prospectus in connection with any resale of such
exchange notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer
in connection with resales of exchange notes received in
exchange for old notes where such old notes were acquired as a
result of market-making activities or other trading activities.
We have agreed that, for a period of 180 days after the
expiration of the exchange offer, we will make this prospectus,
as amended or supplemented, available to any broker-dealer for
use in connection with any such resales. In addition,
until ,
2010 (90 days after the date of this prospectus), all
broker-dealers effecting transactions in the exchange notes may
be required to deliver a prospectus.
We will not receive any proceeds from any sale of exchange notes
by broker-dealers. Exchange notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the
writing of options on the exchange notes or a combination of
such methods of resale. These resales may be made at market
prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the
purchasers of any such exchange notes. Any broker-dealer that
resells exchange notes that were received by it for its own
account pursuant to the exchange offer and any broker or dealer
that participates in a distribution of such exchange notes may
be deemed to be an underwriter within the meaning of
the Securities Act, and any profit on any such resale of
exchange notes and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation
under the Securities Act. The letter of transmittal delivered
with this prospectus states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not
be deemed to admit that it is an underwriter within
the meaning of the Securities Act.
For a period of 180 days after the expiration of the
exchange offer, we will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to
any broker-dealer that requests such documents. We have agreed
to pay all expenses incident to the performance of our
obligations in connection with the exchange offer. We will
indemnify the holders of the exchange notes (including any
broker-dealer) against certain liabilities, including
liabilities under the Securities Act.
LEGAL
MATTERS
The validity of the exchange notes and the enforceability of the
obligations under the exchange notes and guarantees offered
hereby will be passed upon for us by DLA Piper LLP (US),
Phoenix, Arizona.
EXPERTS
The financial statements, incorporated in this prospectus by
reference from JDA Software Group, Inc.s Current Report on
Form 8-K
dated June 8, 2010, and the effectiveness of JDA Software
Group, Inc.s internal control over financial reporting
incorporated in this prospectus by reference from JDA Software
Group, Inc.s Annual Report on
Form 10-K
for the year ended December 31, 2009, have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are
incorporated herein by reference. Such financial statements have
been so incorporated in reliance upon the reports of such firm
given upon their authority as experts in accounting and auditing.
The consolidated financial statements of i2 as of and for the
years ended December 31, 2009, 2008 and 2007, incorporated
in this prospectus by reference to JDA Software Group,
Inc.s Current Report on
Form 8-K
dated June 8, 2010, have been so incorporated in reliance
upon the reports of Grant Thornton LLP, independent registered
public accountants, upon the authority of said firm as experts
in accounting and auditing.
80
$275,000,000
JDA SOFTWARE GROUP,
INC.
Exchange Offer for 8.00% Senior
Notes due 2014
PROSPECTUS
,
2010
We have not authorized any dealer, salesperson or other person
to give any information or represent anything to you other than
the information contained or incorporated by reference in this
prospectus. You may not rely on unauthorized information or
representations.
This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the
registered securities to which it relates, nor does this
prospectus constitute an offer to sell or a solicitation to buy
securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction.
This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities in any
jurisdiction where it is unlawful, where the person making the
offer is not qualified to do so, or to any person who cannot
legally be offered the securities.
The information in this prospectus is current only as of the
date on its cover, and may change after that date. For any time
after the cover date of this prospectus, we do not represent
that our affairs are the same as described or that the
information in this prospectus is correct, nor do we imply those
things by delivering this prospectus or selling securities to
you.
Until ,
2010, all dealers that effect transactions in the exchange
notes, whether or not participating in this exchange offer, may
be required to deliver a prospectus. This is in addition to the
dealers obligation to deliver a prospectus when acting as
underwriters and with respect to their unsold allotments or
subscriptions.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20.
Indemnification of Directors and Officers
Delaware
Registrants:
JDA Software Group, Inc., Manugistics Group, Inc., Manugistics,
Inc., Manugistics Holdings Delaware II, Inc. and i2
Technologies, Inc. are each incorporated under the laws of the
State of Delaware (collectively, the Delaware
Registrants).
Section 102(b) of the Delaware General Corporation Law, or
DGCL, authorizes a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be
personally liable to a corporation or its stockholders for
monetary damages for breach or alleged breach of the
directors duty of care. While this statute
does not change directors duty of care, it enables
corporations to limit available relief to equitable remedies
such as injunction or rescission. The statute has no effect on a
directors duty of loyalty or liability for acts or
omissions not in good faith or involving intentional misconduct
or knowing violations of law, illegal payment of dividends or
stock redemptions or repurchases, or for any transaction from
which the director derives an improper personal benefit. As
permitted by the statute, each of the Delaware Registrants has
adopted provisions in its certificate of incorporation that
eliminate, to the fullest extent permissible under Delaware law,
the personal liability of its directors to such Delaware
Registrant and its stockholders for monetary damages for breach
or alleged breach of their duty of care.
Section 145 of the DGCL provides for the indemnification of
officers, directors, employees and agents of a corporation. Each
Delaware Registrants bylaws provide for indemnification of
its directors, officers, employees and agents to the full extent
permitted by Delaware law, including those circumstances in
which indemnification would otherwise be discretionary under
Delaware law. Each Delaware Registrants bylaws also
empower it to enter into indemnification agreements with its
directors and officers and to purchase insurance on behalf of
any person whom it is required or permitted to indemnify. JDA
Software Group, Inc. has entered into agreements with its
directors and officers that require it to indemnify such persons
to the fullest extent permitted under Delaware law against
expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred (including expenses of a
derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a
director or an officer of JDA Software Group, Inc. or any of its
affiliated enterprises. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim
for indemnification thereunder.
Section 145 of the DGCL provides for indemnification in
terms sufficiently broad to indemnify such individuals, under
certain circumstances, for liabilities (including reimbursement
of expenses incurred) arising under the Securities Act.
JDA Software Group, Inc. has obtained policies insuring it and
its directors and officers against certain liabilities,
including liabilities under the Securities Act.
Arizona
Registrants:
JDA Software, Inc. and JDA Worldwide, Inc. are incorporated
under the laws of the State of Arizona (together, the
Arizona Registrants).
Section 10-851
of the Arizona Revised Statutes, or ARS, authorizes a
corporation to indemnify a director made a party to a proceeding
in such capacity, provided that the individuals conduct
was in good faith and, when serving in an official capacity with
the corporation, the individual reasonably believed that the
conduct was in best interests of the corporation, or in all
other cases, that the conduct was at least not opposed to its
best interests. In the case of any criminal proceedings,
indemnification is allowed if the individual had no reasonable
cause to believe the conduct was unlawful. A corporation may
also indemnify a director for
II-1
conduct for which broader indemnification has been made
permissible or obligatory under a provision of the articles of
incorporation pursuant to section
10-202,
subsection B, paragraph 2 of the ARS.
Section 10-851
of the ARS also provides that a corporation may not indemnify a
director in connection with a proceeding by or in the right of
the corporation to procure a judgment in its favor in which the
director was adjudged liable to the corporation or in connection
with any other proceeding charging improper financial benefit to
the director in which the director was adjudged liable on the
basis that financial benefit was improperly received by the
director. Indemnification permitted under
Section 10-851
in connection with a proceeding by or in the right of the
corporation to procure a judgment in its favor is limited to
reasonable expenses incurred in connection with the proceeding.
Unless otherwise limited by its articles of incorporation,
Section 10-852
of the ARS requires a corporation to indemnify (i) a
director who was the prevailing party, on the merits or
otherwise, in the defense of any proceeding to which the
director was a party because the director is or was a director
of the corporation against reasonable expenses incurred by the
director in connection with the proceeding, and (ii) an
outside director, provided the proceeding is not one by or in
the right of the corporation to procure a judgment in its favor
in which the director was adjudged liable to the corporation, or
one charging improper financial benefit to the director, whether
or not involving action in the directors official
capacity, in which the director was adjudged liable on the basis
that financial benefit was improperly received by the director.
Section 10-856
of the ARS provides that a corporation may indemnify and advance
expenses to an officer of the corporation who is a party to a
proceeding because the individual is or was an officer of the
corporation to the same extent as a director.
The articles of incorporation of JDA Worldwide, Inc. provide
that it shall indemnify its officers and directors to the
fullest extent permissible under Arizona law and that, without
limiting the foregoing, its directors shall not be personally
liable to JDA Worldwide, Inc. or its shareholders for monetary
damages for breach of fiduciary duty as a director, except as
otherwise provided by Arizona law.
Nevada
Registrant:
JDA Technologies US, Inc. (formerly known as i2 Technologies US,
Inc.) is incorporated under the laws of the State of Nevada.
Under the Nevada General Corporation Law, as amended, director
immunity from liability to a corporation or its stockholders for
monetary liabilities applies automatically unless it is
specifically limited by a corporations articles of
incorporation that is not the case with our articles of
incorporation. Excepted from that immunity are: (1) a
willful failure to deal fairly with the corporation or its
stockholders in connection with a matter in which the director
has a material conflict of interest; (2) a violation of
criminal law (unless the director had reasonable cause to
believe that his or her conduct was lawful or no reasonable
cause to believe that his or her conduct was unlawful);
(3) a transaction from which the director derived an
improper personal profit; and (4) willful misconduct.
The articles of incorporation of JDA Technologies US, Inc.
provide that its directors and officers shall not be personally
liable to JDA Technologies US, Inc. or any of its stockholders
for damages for breach of fiduciary duty except for:
(1) acts or omissions which involve intentional misconduct,
fraud or a knowing violation of law; or (2) the payments of
distributions in violation of Section 78.300 of the Nevada
General Corporation Law, as amended. The bylaws of JDA
Technologies US, Inc. provide that it shall indemnify its
directors, officers, employees, and agents, to the fullest
extent permitted by Nevada law.
II-2
Item 21.
Exhibits and Financial Statement Schedules
Reference is made to the Index to Exhibits filed as a part of
this registration statement.
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(b)
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Financial Statement Schedules.
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All schedules have been omitted because they are not applicable
or because the required information is shown in the financial
statements or notes thereto.
Item 22.
Undertakings
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(A)
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The undersigned registrants hereby undertake:
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(1)
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to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(ii)
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to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more that a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
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(iii)
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to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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(2)
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that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering thereof; and
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(3)
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to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
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(B)
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have
been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrants will, unless in the
opinion of their counsel the matter has been settled by
controlling precedent,
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II-3
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submit to a court of appropriate jurisdiction the question
whether such indemnification by them is against public policy as
expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
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(C)
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The undersigned registrants hereby undertake to respond to
requests for information that is incorporated by reference into
the prospectus pursuant to Items 4, 10(b), 11 or 13 of
Form S-4
within one business day of receipt of such request, and to send
the incorporated documents by first class mail or equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of the registration statement
through the date of responding to the request.
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(D)
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The undersigned registrants hereby undertake to supply by means
of a post-effective amendment all information concerning a
transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration
statement when it became effective.
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II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scottsdale, State of Arizona, on
November 3, 2010.
JDA SOFTWARE GROUP, INC.
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By:
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/s/ Hamish
N.J. Brewer
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Hamish N.J. Brewer
President, Chief Executive Officer and Director
POWER OF
ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ *
James
D. Armstrong
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Chairman of the Board of Directors
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November 3, 2010
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/s/ Hamish
N. J. Brewer
Hamish
N. J. Brewer
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President, Chief Executive Officer, and Director (Principal
Executive Officer)
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November 3, 2010
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/s/ *
Peter
S. Hathaway
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Executive Vice President and Chief Financial Officer (Principal
Financial and Accounting Officer)
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November 3, 2010
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/s/ *
J.
Michael Gullard
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Director
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November 3, 2010
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/s/ *
Douglas
G. Marlin
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Director
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November 3, 2010
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/s/ *
Jock
Patton
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Director
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November 3, 2010
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*By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Attorney in Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scottsdale, State of Arizona, on
November 3, 2010.
JDA SOFTWARE, INC.
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By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ *
Hamish
N. J. Brewer
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President, Chief Executive Officer, and Director (Principal
Executive Officer)
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November 3, 2010
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/s/ *
Lindsay
LaVerne Hoopes
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Vice President, Secretary, Assistant Treasurer and Director
(Principal Financial and Accounting
Officer)
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November 3, 2010
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/s/ G.
Michael Bridge
G.
Michael Bridge
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Senior Vice President and
General Counsel
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November 3, 2010
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*By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Attorney in Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scottsdale, State of Arizona, on
November 3, 2010.
JDA WORLDWIDE, INC.
JDA TECHNOLOGIES US, INC.
I2 TECHNOLOGIES, INC.
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By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ *
Hamish
N. J. Brewer
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President, Chief Executive Officer, and Director (Principal
Executive Officer)
of each registrant listed above
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November 3, 2010
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/s/ *
Lindsay
LaVerne Hoopes
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Vice President, Secretary,
Assistant Treasurer and Director
(Principal Financial and Accounting Officer) of each registrant
listed above
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November 3, 2010
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/s/ G.
Michael Bridge
G.
Michael Bridge
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Senior Vice President,
General Counsel and Director of each registrant listed above
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November 3, 2010
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*By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Attorney in Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scottsdale, State of Arizona, on
November 3, 2010.
MANUGISTICS GROUP, INC.
MANUGISTICS, INC.
MANUGISTICS HOLDINGS DELAWARE II, INC.
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By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ *
Hamish
N. J. Brewer
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President, Chief Executive Officer, and Director (Principal
Executive Officer)
of each registrant listed above
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November 3, 2010
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/s/ *
Peter
S. Hathaway
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Executive Vice President and
Treasurer (Principal Financial and Accounting Officer) of each
registrant listed above
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November 3, 2010
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/s/ G.
Michael Bridge
G.
Michael Bridge
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Senior Vice President,
General Counsel, and Director of each registrant listed above
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November 3, 2010
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*By:
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/s/ G.
Michael Bridge
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G. Michael Bridge
Attorney in Fact
EXHIBIT INDEX
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Exhibit #
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Description of
Document
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2.1
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Agreement and Plan of Merger by and between JDA Software Group,
Inc., Iceberg Acquisition Corp and i2 Technologies, Inc. dated
August 10, 2008. (Incorporated by reference to
Exhibit 10.1 to the Companys Current Report on
Form 8-K
dated August 10, 2008, as filed on August 11, 2008).
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2.2
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Agreement and Plan of Merger by and between JDA Software Group,
Inc., Alpha Acquisition Corp and i2 Technologies, Inc. dated
November 4, 2009. (Incorporated by reference to
Exhibit 2.1 to the Companys Current Report on
Form 8-K
dated November 4,2009, as filed on November 5, 2009).
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3.1.1
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Third Restated Certificate of Incorporation of the Company, as
amended through July 14, 2010. (Incorporated by reference
to Exhibit 3.1 to the Companys Quarterly Report on Form
10-Q
for the
quarterly period ended June 30, 2010, as filed on
August 9, 2010).
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Certificate of Incorporation or Articles of Incorporation, as
applicable, with any amendments thereto, of the following
additional registrants:
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3.1.2
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JDA Software, Inc. (Previously filed).
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3.1.3
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JDA Worldwide, Inc. (Previously filed).
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3.1.4
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Manugistics Group, Inc. (Previously filed).
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3.1.5
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Manugistics, Inc. (Previously filed).
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3.1.6
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Manugistics Holdings Delaware II, Inc. (Previously filed).
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3.1.7
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i2 Technologies, Inc. (Previously filed).
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3.1.8
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JDA Technologies US, Inc. (Previously filed).
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3.2.1
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Amended and Restated Bylaws of JDA Software Group, Inc. (as
amended through April 22, 2010) (Incorporated by reference
to Exhibit 3.1 to the Companys Current Report on
Form 8-K
dated April 22, 2010, as filed on April 28, 2010).
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Bylaws, with any amendments thereto, of the following
additional registrants:
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3.2.2
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JDA Software, Inc. (Previously filed).
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3.2.3
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JDA Worldwide, Inc. (Previously filed).
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3.2.4
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Manugistics Group, Inc. (Previously filed).
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3.2.5
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Manugistics, Inc. (Previously filed).
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3.2.6
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Manugistics Holdings Delaware II, Inc. (Previously filed).
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3.2.7
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i2 Technologies, Inc. (Previously filed).
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3.2.8
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JDA Technologies US, Inc. (Previously filed).
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3.3
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Certificate of Designation of rights, preferences, privileges
and restrictions of Series B Convertible Preferred Stock of
JDA Software Group, Inc filed with the Secretary of State of the
State of Delaware on July 5, 2006. (Incorporated by
reference to Exhibit 3.1 to the Companys Current
Report on
Form 8-K
dated July 5, 2006, as filed on July 6, 2006).
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3.4
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Certificate of Correction filed to correct a certain error in
the Certificate of Designation of rights, preferences,
privileges and restrictions of Series B Convertible
Preferred Stock of JDA Software Group, Inc. filed with the
Secretary of State of the State of Delaware on July 5,
2006. (Incorporated by reference to Exhibit 3.4 to the
Companys Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2006, as filed
on November 9,2006).
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4.1
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Specimen Common Stock Certificate of JDA Software Group, Inc.
(Incorporated by reference the Companys Registration
Statement on
Form S-1
(File
No. 333-748),
declared effective on March 14, 1996).
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4.2
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8.0% Senior Notes Due 2014 Indenture dated as of
December 10, 2009 among JDA Software Group, Inc., the
Guarantors, and U.S. Bank National Association, as trustee.
(Incorporated by reference to Exhibit 4.1 to the
Companys Current Report on
Form 8-K
dated December 10, 2009, as filed on December 11,
2009).
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4.3
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Supplemental Indenture dated as of January 28, 2010 among
JDA Software Group, Inc., i2 Technologies, Inc., i2 Technologies
US, Inc., the Guarantors and U.S. Bank National Association, as
trustee. (Previously filed).
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Exhibit #
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Description of
Document
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5.1
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Opinion of DLA Piper (US) LLP. (Filed herewith).
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10.1 (1)
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Form of Indemnification Agreement. (Incorporated by reference to
Exhibit 10.1 to the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009).
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10.2 (1)
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1996 Stock Option Plan, as amended on March 28, 2003.
(Incorporated by reference to Exhibit 10.3 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2003, as filed on
March 12, 2004).
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10.3(1)
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1996 Outside Directors Stock Option Plan and forms of agreement
thereunder. (Incorporated by reference to the Companys
Registration Statement on
Form S-1
(File
No. 333-748),
declared effective on March 14, 1996)
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10.4 (1)
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Executive Employment Agreement between James D. Armstrong and
JDA Software Group, Inc. dated July 23, 2002, together with
Amendment No. 1 effective August 1, 2003.
(Incorporated by reference to Exhibit 10.5 to the
Companys Annual Report on
Form 10-K
for the year ended December 21, 2003, as filed on
March 12, 2004).
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10.5 (1)
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Amended and Restated Executive Employment Agreement between
Hamish N. Brewer and JDA Software Group, Inc. dated
September 8, 2009. (Incorporated by reference to
Exhibit 10.5 to the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009).
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10.6 (1)
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Executive Employment Agreement between Kristen L. Magnuson and
JDA Software Group, Inc. dated July 23, 2002. (Incorporated
by reference to Exhibit 10.7 to the Companys
Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2002, as filed
on November 12, 2002).
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10.7 (1)
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1998 Nonstatutory Stock Option Plan, as amended on
March 28, 2003. (Incorporated by Reference to
Exhibit 10.8 to the Companys Annual Report on
Form 10-K
for the year ended December 31, 2003, as filed on
March 12, 2004).
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10.8
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2008 Employee Stock Purchase Plan. (Incorporated by reference to
Exhibit 10.8 to the Companys Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 2008, as filed on
August 11, 2008).
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10.9
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Credit Agreement dated as of July 5, 2006, among JDA
Software Group, Inc., ManugisticsGroup, Inc., Citicorp North
America, Inc., Citibank, N.A., Citigroup Global Markets Inc.,
UBS Securities LLC and Wells Fargo Foothill, LLC and the Lenders
named therein. (Incorporated by reference to Exhibit 4.1 to
the Companys Current Report on
Form 8-K
dated July 5, 2006, as filed on July 6, 2006).
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10.9.1
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Amendment No. 1 to Credit Agreement dated July 26,
2007, among JDA Software Group, Inc., Manugistics Group, Inc.,
Citicorp North America, Inc., Citibank, N.A., Citigroup Global
Markets Inc., UBS Securities LLC and Wells Fargo Foothill, LLC
and the Lenders named therein. (Incorporated by reference to
Exhibit 10.9.1 to the Companys Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 2007, as filed on
August 9,2007).
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10.10 (2)
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Value-Added Reseller License Agreement for Uniface Software
between Compuware Corporation and JDA Software Group, Inc. dated
April 1, 2000, together with Product
Schedule No. One dated June 23, 2000, Product
Schedule No. Two dated September 28, 2001, and
Amendment to Product Schedule No. Two dated
December 23, 2003. (Incorporated by reference to
Exhibit 10.14 to the Companys Annual Report on
Form 10-K
for the year ended December 31, 2003, as filed on
March 12, 2004).
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10.11 (1)
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JDA Software, Inc. 401(k) Profit Sharing Plan, adopted as
amended effective January 1, 2004. (Incorporated by
reference to Exhibit 10.15 to the Companys Annual
Report on
Form 10-K
for the year ended December 31, 2003, as filed on
March 12, 2004).
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10.12 (1)
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Form of Amendment of Stock Option Agreement between JDA Software
Group, Inc and Kristen L. Magnuson, amending certain stock
options granted to Ms. Magnuson pursuant to the JDA
Software Group, Inc. 1996 Stock Option Plan on
September 11, 1997 and January 27, 1998. (Incorporated
by reference to Exhibit 10.35 to the Companys
Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 1998, as filed on
August 14, 1998).
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Exhibit #
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Description of
Document
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10.13 (1)
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Form of Rights Agreement between the Company and ChaseMellon
Shareholder Services, as Rights Agent (including as
Exhibit A the Form of Certificate of Designation,
Preferences and Rights of the Terms of the Series A
Preferred Stock, as Exhibit B the Form of Right
Certificate, and as Exhibit C the Summary of Terms and
Rights Agreement). (Incorporated by reference to Exhibit 1
to the Companys Current Report on
Form 8-K
dated October 2, 1998, as filed on October 28, 1998).
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10.14 (1)
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Form of Incentive Stock Option Agreement between JDA Software
Group, Inc. and Kristen L. Magnuson to be used in connection
with stock option grants to Ms. Magnuson pursuant to the
JDA Software Group, Inc. 1996 Stock Option Plan. (Incorporated
by reference to Exhibit 10.39 to the Companys
Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 1998, as filed
on November 16, 1998).
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10.15 (1)(3)
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Form of Incentive Stock Option Agreement between JDA Software
Group, Inc. and certain Senior Executive Officers to be used in
connection with stock options granted pursuant to the JDA
Software Group, Inc. 1996 Stock Option Plan. (Incorporated by
reference to Exhibit 10.20 to the Companys Annual
Report on
Form 10-K
for the year ended December 31, 1999, as filed on
March 16, 2000).
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10.16 (1)(3)
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Form of Nonstatutory Stock Option Agreement between JDA Software
Group, Inc. and certain Senior Executive Officers to be used in
connection with stock options granted pursuant to the JDA
Software Group, Inc. 1996 Stock Option Plan. (Incorporated by
reference to Exhibit 10.21 to the Companys Annual
Report on
Form 10-K
for the year ended December 31, 1999, as filed on
March 16, 2000).
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10.17 (1)(4)
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Form of Amendment of Stock Option Agreement between JDA Software
Group, Inc and certain Senior Executive Officers, amending
certain stock options granted pursuant to the JDA Software
Group, Inc. 1996 Stock Option Plan. (Incorporated by reference
to Exhibit 10.22 to the Companys Annual Report on
Form 10-K
for the year ended December 31, 1999, as filed on
March 16, 2000).
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10.18 (1)(5)
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Form of Incentive Stock Option Agreement between JDA Software
Group, Inc. and certain Senior Executive Officers to be used in
connection with stock options granted pursuant to the JDA
Software Group, Inc. 1996 Stock Option Plan. (Incorporated by
reference to Exhibit 10.24 to the Companys Annual
Report on
Form 10-K
for the year ended December 31, 1999, as filed on
March 16, 2000).
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10.19 (1)
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Executive Employment Agreement between Christopher Koziol and
JDA Software Group, Inc. dated June 13, 2005. (Incorporated
by reference to Exhibit 10.1 to the Companys Current
Report on
Form 8-K
dated May 16, 2005, as filed on June 20, 2005).
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10.20 (1)
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Restricted Stock Units Agreement between Christopher Koziol and
JDA Software Group, Inc. dated November 3, 2005.
(Incorporated by reference to Exhibit 99.1 to the
Companys Current Report on
Form 8-K
dated October 28, 2005, as filed on November 3, 2005).
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10.21 (1)
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Form of Restricted Stock Unit Agreement to be used in connection
with restricted stock units granted pursuant to the JDA Software
Group, Inc. 2005 Performance Incentive Plan. (Incorporated by
reference to Exhibit 99.2 to the Companys Current
Report on
Form 8-K
dated October 28, 2005, as filed on November 3, 2005).
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10.22 (1)
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Standard Form of Restricted Stock Agreement to be used in
connection with restricted stock granted pursuant to the JDA
Software Group, Inc. 2005 Performance Incentive Plan.
(Incorporated by reference to Exhibit 10.31 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2005, as filed on
March 16, 2006).
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10.23 (1)
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Form of Restricted Stock Agreement to be used in connection with
restricted stock granted to Hamish N. Brewer pursuant to the JDA
Software Group, Inc. 2005 Performance Incentive Plan.
(Incorporated by reference to Exhibit 10.32 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2005, as filed on
March 16, 2006).
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10.24 (1)
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Form of Restricted Stock Agreement to be used in connection with
restricted stock granted to Kristen L. Magnuson pursuant to the
JDA Software Group, Inc. 2005 Performance Incentive Plan.
(Incorporated by reference to Exhibit 10.33 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2005, as filed on
March 16, 2006).
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Exhibit #
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Description of
Document
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10.25 (1)
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Form of Restricted Stock Agreement to be used in connection with
restricted stock granted to Christopher J. Koziol pursuant to
the JDA Software Group, Inc. 2005 Performance Incentive Plan.
(Incorporated by reference to Exhibit 10.34 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 2005, as filed on
March 16, 2006).
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10.26
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Preferred Stock Purchase Agreement by and among JDA Software
Group, Inc. and Funds Affiliated with Thoma Cressey Equity
Partners Inc. dated as of April 23, 2006. (Incorporated by
reference to Exhibit 10.1 to the Companys Current
Report on
Form 8-K/A
(Amendment No. 1) dated April 24, 2006, as filed
on April 27, 2006).
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10.27
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Registration Rights Agreement Between JDA Software Group, Inc.
and Funds Affiliated with Thoma Cressey Equity Partners Inc.
dated as of April 23, 2006. (Incorporated by reference to
Exhibit 10.2 to the Companys Current Report on
Form 8-K/A
(Amendment No. 1) dated April 24, 2006, as filed
on April 27, 2006).
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10.28
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Commitment Letter by and among JDA Software Group, Inc., Credit
Suisse, Credit Suisse Securities (USA) LLC, Wachovia Bank,
National Association and Wachovia Capital Markets, LLC dated
August 10, 2008. (Incorporated by reference to
Exhibit 10.2 to the Companys Current Report on
Form 8-K
dated August 10, 2008, as filed on August 11, 2008).
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10.29
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Amendment to Commitment Letter by and among JDA Software Group,
Inc., Credit Suisse, Credit Suisse Securities (USA) LLC,
Wachovia Bank, National Association and Wachovia Capital
Markets, LLC dated September 29, 2008. (Incorporated by
reference to Exhibit 10.1 to the Companys Current
Report on
Form 8-K
dated September 29, 2008, as filed on September 30,
2008).
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10.30 (1)(2)
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Executive Employment Agreement between Pete Hathaway and JDA
Software Group, Inc. dated July 20, 2009. (Incorporated by
reference to Exhibit 10.1 to the Companys Quarterly
Report on
Form 10-Q/A
(Amendment No. 1) for the quarterly period ended
September 30, 2009, as filed on December 18, 2009).
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10.31 (1)(2)
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Executive Employment Agreement between Jason Zintak and JDA
Software Group, Inc. dated August 18, 2009. (Incorporated
by reference to Exhibit 10.2 to the Companys
Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2009, as filed
on November 3, 2009).
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10.32 (1)
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Separation Agreement between JDA Software Group, Inc. and
Kristen L. Magnuson dated April 6, 2009. (Incorporated by
reference to Exhibit 10.4 to the Companys Quarterly
Report on
Form 10-Q
for the quarterly period ended September 30, 2009, as filed
on November 3, 2009).
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10.33 (1)
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Separation Agreement between JDA Software Group, Inc. and
Christopher J. Koziol dated August 3, 2009. (Incorporated
by reference to Exhibit 10.5 to the Companys
Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2009, as filed
on November 3, 2009).
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10.34
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Voting Agreement by and among JDA Software Group, Inc., i2
Technologies, Inc. and R2 Top Hat, Ltd. dated November 4,
2009. (Incorporated by reference to Exhibit 10.1 to the
Companys Current Report on
Form 8-K
dated November 4, 2009, as filed on November 5, 2009).
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10.35
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Voting Agreement by and among JDA Software Group, Inc., i2
Technologies, Inc. and directors and officers of i2
Technologies, Inc. signatory thereto dated November 4,
2009. (Incorporated by reference to Exhibit 10.2 to the
Companys Current Report on
Form 8-K
dated November 4, 2009, as filed on November 5, 2009).
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10.36
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Voting Agreement by and among JDA Software Group, Inc., i2
Technologies, Inc. and directors and officers of JDA Software
Group, Inc. signatory thereto dated November 4, 2009.
(Incorporated by reference to Exhibit 10.3 to the
Companys Current Report on
Form 8-K
dated November 4, 2009, as filed on November 5, 2009).
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10.37
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Commitment Letter by and among JDA Software Group, Inc., Wells
Fargo Foothill, LLC and Wells Fargo Securities, LLC dated
November 4, 2009. (Incorporated by reference to
Exhibit 10.4 to the Companys Current Report on
Form 8-K
dated November 4, 2009, as filed on November 5, 2009).
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Exhibit #
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Description of
Document
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10.38
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Exchange and Registration Rights Agreement Between JDA Software
Group, Inc. and certain Purchasers represented by Goldman,
Sachs & Co. and Wells Fargo Securities, LLC, dated
December 10, 2009. (Incorporated by reference to
Exhibit 10.1 to the Companys Current Report on
Form 8-K
dated December 10, 2009, as filed on December 11,
2009).
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10.39
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Escrow and Security Agreement Between JDA Software Group, Inc.
and U.S. Bank National Association dated December 10, 2009.
(Incorporated by reference to Exhibit 10.2 to the
Companys Current Report on
Form 8-K
dated December 10, 2009, as filed on December 11,
2009).
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10.40
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Stock Purchase Agreement among JDA Software Group, Inc., Thoma
Cressey Fund VII, LP and Thoma Cressey Friends
Fund VII, LP, dated September 8, 2009. (Incorporated
by reference to Exhibit 10.1 to the Companys Current
Report on
Form 8-K
dated September 9, 2009, as filed on September 9,
2009).
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21.1
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Subsidiaries of Registrant. (Incorporated by reference to
Exhibit 21.1 to the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009).
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23.1
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Consent of Deloitte & Touche LLP (relating to JDA
Software Group, Inc.). (Filed herewith).
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23.2
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Consent of Grant Thornton LLP (relating to i2 Technologies,
Inc.). (Filed herewith).
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23.3
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Consent of DLA Piper (US) LLP. (Included in Exhibit 5.1).
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24.1
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Powers of Attorney for each Registrant (Previously filed).
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25
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Statement of Eligibility on
Form T-1.
(Previously filed).
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99.1
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Form of Letter of Transmittal. (Filed herewith).
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99.2
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Form of Notice of Guaranteed Delivery. (Filed herewith).
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99.3
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Form of Letter to Clients. (Previously filed).
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99.4
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Form of Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees (Previously filed).
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(1)
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Management contracts or compensatory plans or arrangements
covering executive officers or directors of the Company.
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(2)
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Confidential treatment has been granted as to part of this
exhibit.
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(3)
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Applies to James D. Armstrong.
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(4)
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Applies to Hamish N. J. Brewer.
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(5)
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Applies to Senior Executive Officers with the exception of James
D. Armstrong and Kristen L. Magnuson.
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