e10vq

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D4cVWoIRETs94zVGWsLybnVyEdcOyarXrFPBNhwE4K5RW/6DpNBFdlw4KmcfIZh6 yX+5PzjnL+9LC2JLM+3KEg== 0000950153-03-001591.txt : 20030813 0000950153-03-001591.hdr.sgml : 20030813 20030813124519 ACCESSION NUMBER: 0000950153-03-001591 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20030630 FILED AS OF DATE: 20030813 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JDA SOFTWARE GROUP INC CENTRAL INDEX KEY: 0001006892 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 860787377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-27876 FILM NUMBER: 03839904 BUSINESS ADDRESS: STREET 1: 14400 N 87TH ST CITY: SCOTTSDALE STATE: AZ ZIP: 85260 BUSINESS PHONE: 4083083000 MAIL ADDRESS: STREET 1: 14400 N 87TH ST CITY: SCOTTSDALE STATE: AZ ZIP: 85260 10-Q 1 p68102e10vq.htm 10-Q e10vq

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

FORM 10-Q

(Mark One)


x		QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2003


o		TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the Transition Period from to

Commission File Number: 0-27876

JDA SOFTWARE GROUP, INC.

(Exact name of registrant as specified in its charter)


Delaware (State or other jurisdiction of incorporation or organization)		86-0787377 (I.R.S. Employer Identification No.)

14400 North 87^th Street
Scottsdale, Arizona 85260
(480) 308-3000
(Address and telephone number of principal executive offices)

Indicate by check mark whether registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) had been subject to such filing requirements for the past 90 days. Yesx No o

Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). Yes x No o

The number of shares outstanding of the Registrant’s Common Stock, $0.01 par value, was 28,539,050 as of August 8, 2003.

TABLE OF CONTENTS


PART I: FINANCIAL INFORMATION
	Item 1. Financial Statements
		CONDENSED CONSOLIDATED BALANCE SHEETS
		CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
		CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE OPERATIONS
		CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
		NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
	Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations
	Item 3: Quantitative and Qualitative Disclosures About Market Risk
	Item 4: Controls and Procedures
PART II. OTHER INFORMATION
	Item 1. Legal Proceedings
	Item 2. Changes in Securities and Use of Proceeds
	Item 3. Defaults Upon Senior Securities
	Item 4. Submission of Matters to a Vote of Security Holders
	Item 5. Other Information
	Item 6. Exhibits and Reports on Form 8-K:
SIGNATURE
EXHIBIT INDEX
Exhibit 10.11
Exhibit 31.1
Exhibit 31.2
Exhibit 32.1
Exhibit 32.2

JDA SOFTWARE GROUP, INC.

FORM 10-Q

TABLE OF CONTENTS


		Page No.

PART I: INTERIM FINANCIAL INFORMATION
Item 1. Financial Statements
	Condensed Consolidated Balance Sheets as of June 30, 2003 and December 31, 2002		3
	Condensed Consolidated Statements of Operations for the Three and Six Months Ended June 30, 2003 and June 30, 2002		4
	Condensed Consolidated Statements of Comprehensive Operations for the Three and Six Months Ended June 30, 2003 and June 30, 2002		5
	Condensed Consolidated Statements of Cash Flows for the Three and Six Months Ended June 30, 2003 and June 30, 2002		6
	Notes to Condensed Consolidated Financial Statements		8
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations			14
Item 3. Quantitative and Qualitative Disclosures About Market Risk			44
Item 4. Controls and Procedures			45
PART II: OTHER INFORMATION
Item 1. Legal Proceedings			46
Item 2. Changes in Securities and Use of Proceeds			46
Item 3. Defaults Upon Senior Securities			46
Item 4. Submission of Matters to a Vote of Security Holders			46
Item 5. Other Information			46
Item 6. Exhibits and Reports on Form 8-K			46
Signature			48

PART I: FINANCIAL INFORMATION

Item 1. Financial Statements

JDA SOFTWARE GROUP, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)


					June 30,			December 31,
					2003			2002

					(Unaudited)
				ASSETS
Current Assets:
	Cash and cash equivalents				$	85,605		$	71,065
	Marketable securities					28,742			30,790

		Total cash, cash equivalents and marketable securities				114,347			101,855
	Accounts receivable, net					32,926			47,077
	Income tax receivable					5,037			7,479
	Deferred tax asset					5,345			5,564
	Prepaid expenses and other current assets					13,711			12,289

		Total current assets				171,366			174,264
Property and Equipment, net						21,128			21,337
Goodwill						62,091			59,801
Other Intangibles, net						55,311			56,635
Promissory Note Receivable						2,948			3,017

			Total assets		$	312,844		$	315,054

				LIABILITIES AND STOCKHOLDERS’ EQUITY
Current Liabilities:
	Accounts payable				$	3,291		$	3,020
	Accrued expenses and other liabilities					21,064			26,957
	Deferred revenue					27,270			23,331

			Total current liabilities			51,625			53,308
Deferred Tax Liability						2,944			4,980
Stockholders’ Equity:
	Preferred stock, $.01 par value; authorized 2,000,000 shares; none issued or outstanding					—			—
	Common stock, $.01 par value; authorized, 50,000,000 shares; issued 28,937,661 and 28,696,688 shares, respectively					289			287
	Additional paid-in capital					239,643			237,120
	Retained earnings					26,406			27,353
	Accumulated other comprehensive loss					(3,511	)		(4,199	)

						262,827			260,561
	Less treasury stock, at cost, 414,702 and 339,702 shares, respectively					(4,552	)		(3,795	)

		Total stockholders’ equity				258,275			256,766

			Total liabilities and stockholders’ equity		$	312,844		$	315,054

See notes to condensed consolidated financial statements.

JDA SOFTWARE GROUP, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except earnings per share data)
(unaudited)


			Three Months Ended				Six Months Ended
			June 30,				June 30,

			2003		2002		2003			2002

REVENUES:
	Software licenses		$	15,529	$	18,286	$	23,232		$	37,819
	Maintenance services			17,258		14,008		33,702			27,024

		Product revenues		32,787		32,294		56,934			64,843
	Consulting services			18,357		23,172		33,958			47,743
	Reimbursed expenses			1,821		2,118		3,328			4,148

		Service revenues		20,178		25,290		37,286			51,891
		Total revenues		52,965		57,584		94,220			116,734

COST OF REVENUES:
	Cost of software licenses			182		713		423			1,124
	Amortization of acquired software technology			1,101		1,072		2,170			2,109
	Cost of maintenance services			4,372		3,450		8,288			6,848

		Cost of product revenues		5,655		5,235		10,881			10,081
	Cost of consulting services			14,119		14,769		28,179			32,599
	Reimbursed expenses			1,821		2,118		3,328			4,148

		Cost of service revenues		15,940		16,887		31,507			36,747
		Total cost of revenues		21,595		22,122		42,388			46,828

GROSS PROFIT				31,370		35,462		51,832			69,906
OPERATING EXPENSES:
	Product development			12,608		10,404		22,788			20,805
	Sales and marketing			10,217		11,265		17,784			20,655
	General and administrative			6,267		7,258		11,576			14,735
	Amortization of intangibles			732		712		1,444			1,426
	Relocation costs to consolidate development and client support activities			578		—		1,260			—
	Purchased in-process research and development			—		800		—			800
	Restructuring, office closure costs and other charges			—		1,295		—			1,295

		Total operating expenses		30,402		31,734		54,852			59,716

OPERATING INCOME (LOSS)				968		3,728		(3,020	)		10,190
	Gain on sale of office facility			639		—		639			—
	Other income, net			379		421		924			1,002

		Total other income		1,018		421		1,563			1,002

INCOME (LOSS) BEFORE INCOME TAXES				1,986		4,149		(1,457	)		11,192
	Income tax provision (benefit)			695		1,472		(510	)		3,970

NET INCOME (LOSS)			$	1,291	$	2,677	$	(947	)	$	7,222

BASIC EARNINGS (LOSS) PER SHARE			$	.05	$	.10	$	(.03	)	$	.26

DILUTED EARNINGS (LOSS) PER SHARE			$	.05	$	.09	$	(.03	)	$	.25

SHARES USED TO COMPUTE:
	Basic earnings (loss) per share			28,506		28,071		28,479			27,729

	Diluted earnings(loss) per share			28,659		29,437		28,479			29,180

See notes to condensed consolidated financial statements.

JDA SOFTWARE GROUP, INC.

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE OPERATIONS
(in thousands, unaudited)


		Three Months Ended						Six Months Ended
		June 30,						June 30,

		2003			2002			2003			2002

NET INCOME (LOSS)		$	1,291		$	2,677		$	(947	)	$	7,222
OTHER COMPREHENSIVE INCOME (LOSS):
	Unrealized holding loss on marketable securities available for sale, net		(10	)		(7	)		(32	)		(18	)
	Foreign currency translation income (loss)		1,858			2,624			720			2,321

COMPREHENSIVE INCOME (LOSS)		$	3,139		$	5,294		$	259		$	9,525

See notes to condensed consolidated financial statements.

JDA SOFTWARE GROUP, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands, unaudited)


				Six Months
				Ended June 30,

				2003			2002

OPERATING ACTIVITIES:
	Net income (loss)			$	(947	)	$	7,222
	Adjustments to reconcile net income (loss) to net cash provided by operating activities:
		Depreciation and amortization			8,235			7,712
		Provision for doubtful accounts			250			2,400
		Tax benefit – stock options and employee stock purchase plan			33			6,759
		Gain on sale of office facility			(639	)		—
		Write-off of purchased in-process research and development			—			800
		Deferred income taxes			(1,817	)		105
	Changes in assets and liabilities:
		Accounts receivable			13,824			(5,259	)
		Income tax receivable			2,400			(4,223	)
		Prepaid expenses and other current assets			(938	)		(4,203	)
		Accounts payable			266			1,910
		Accrued expenses and other liabilities			(5,875	)		(5,215	)
		Deferred revenue			3,203			9,422

			Net cash provided by operating activities		17,995			17,430

INVESTING ACTIVITIES:
	Purchase of marketable securities				(20,564	)		(23,260	)
	Sales of marketable securities				100			7,640
	Maturities of marketable securities				22,480			2,080
	Payment of direct costs related to the acquisition of E3 Corporation				(532	)		(4,180	)
	Purchase of Vista Software Solutions, Inc.				(4,006	)		—
	Purchase of J•Commerce, Inc.				—			(4,170	)
	Payments received on promissory note receivable				69			176
	Purchase of property and equipment				(5,551	)		(3,652	)
	Proceeds from disposal of property and equipment				1,731			172

			Net cash used in investing activities		(6,273	)		(25,194	)

FINANCING ACTIVITIES:
	Issuance of common stock - stock option plan				320			12,200
	Issuance of common stock - employee stock purchase plan				2,172			2,039
	Purchase of treasury stock				(757	)		(22	)
	Payments on capital lease obligations				(117	)		(153	)

			Net cash provided by financing activities		1,618			14,064

Effect of exchange rates on cash					1,200			1,189

Net increase in cash and cash equivalents					14,540			7,489

CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD					71,065			51,865

CASH AND CASH EQUIVALENTS, END OF PERIOD				$	85,605		$	59,354

JDA SOFTWARE GROUP, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands, unaudited)


					Six Months
					Ended June 30,

					2003			2002

SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
		Cash paid for:
				Income taxes	$	957		$	1,831

SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING ACTIVITIES:
Acquisition of Vista Software Solutions, Inc.:
	Fair value of current assets acquired				$	(662	)
	Software technology					(1,100	)
	Customer lists					(1,110	)
	Other intangible assets					(80	)
	Goodwill					(2,290	)
	Deferred revenue					681

			Total acquisition cost of Vista Software Solutions, Inc.			(4,561	)
	Accruals for direct costs related to the acquisition					555

			Total cash expended to acquire Vista Software Solutions, Inc.		$	(4,006	)

Acquisition of J•Commerce, Inc.:
	Software technology							$	(2,060	)
	In-process research and development								(800	)
	Goodwill								(1,325	)

			Total acquisition cost of J•Commerce, Inc.						(4,185	)
	Accruals for direct costs related to the acquisition								15

			Total cash expended to acquire J•Commerce, Inc.					$	(4,170	)

See notes to condensed consolidated financial statements.

JDA SOFTWARE GROUP, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(in thousands, except percentages, shares, per share amounts, or as otherwise stated)
(unaudited)

1. Basis of Presentation

The accompanying unaudited condensed consolidated financial statements of JDA Software Group, Inc. (the “Company”) have been prepared in accordance with accounting principles generally accepted in the United States of America applicable to interim financial statements. Accordingly, they do not include all of the information and notes required for complete financial statements. In the opinion of management, all adjustments and reclassifications considered necessary for a fair and comparable presentation have been included and are of a normal recurring nature. Operating results for the three and six month periods ended June 30, 2003 are not necessarily indicative of the results that may be expected for the year ending December 31, 2003. These consolidated financial statements should be read in conjunction with the audited financial statements and the notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenue and expenses during the reporting periods. Actual results could differ from those estimates.

Certain reclassifications have been made to the June 30, 2002 interim financial statements in order to conform to the June 30, 2003 presentation.

2. New Accounting Standards

In June 2002, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 146, Accounting for Costs Associated with Exit or Disposal Activities (“SFAS No. 146”). The provisions of SFAS No. 146 are effective for exit or disposal activities that are initiated after December 31, 2002. SFAS No. 146 was adopted effective January 1, 2003. SFAS No. 146 addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies EITF No. 94-3. Under SFAS No. 146, the liability for costs associated with exit or disposal activities is recognized and measured initially at fair value only when the liability is incurred, rather than at the date the Company committed to the exit plan. No exit or disposal activities have occurred since the adoption of SFAS No. 146.

In November 2002, the Financial Accounting Standards Board issued FASB Interpretation No. 45 (“FIN 45”), “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of the Indebtedness of Others,” which clarifies the requirement of SFAS No. 5, “Accounting for Contingencies,” relating to a guarantor’s accounting for and disclosures of certain guarantee issues. Our standard software license agreements contain an infringement indemnity clause under which we agree to indemnify and hold harmless our customers and business partners against liability and damages arising from claims of copyright or other intellectual property infringement by our products. These terms constitute a form of guarantee that is subject to the disclosure requirements, but not the initial recognition or measurement provisions of FIN 45. We have never lost an infringement claim and our costs to defend such lawsuits have been insignificant. Although it is possible that in the future third parties may claim that our current or potential future software solutions or we infringe on their intellectual property, we do not expect a significant impact on our business, operating results, or financial condition.

In December 2002, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 148, Accounting for Stock-Based Compensation — Transition and Disclosure (“SFAS No. 148”) which is effective for fiscal years ending after December 15, 2002. SFAS No. 148 amends SFAS No. 123 to provide alternative methods of transition to SFAS No. 123’s fair value method of accounting for stock-based employee compensation if a company elects to account for its equity awards under this method. SFAS No. 148 also amends the disclosure provisions of SFAS No. 123 and APB Opinion No. 28, Interim Financial Reporting, to require disclosure of the effects of an entity’s accounting policy with respect to stock-based employee compensation on

reported net income and earnings per share in both annual and interim financial statements. We are currently evaluating which method of transition to fair value accounting we will elect.

The following table presents pro forma disclosures required by SFAS No. 148 of net income and basic and diluted earnings per share as if stock-based employee compensation had been recognized during the three and six month periods ended June 30, 2003 and 2002. The compensation expense for these periods has been determined under the fair value method using the Black-Scholes pricing model, and assumes graded vesting.


	Three Months						Six Months
	Ended June 30,						Ended June 30,

	2003			2002			2003			2002

Net income (loss) as reported	$	1,291		$	2,677		$	(947	)	$	7,222
Less: stock-based compensation expense, net of related tax effects		(1,884	)		(2,350	)		(3,791	)		(5,034	)

Pro forma net income (loss)	$	(593	)	$	327		$	(4,738	)	$	2,188
Basic earnings (loss) per share — as reported	$	.05		$	.10		$	(.03	)	$	.26
Diluted earnings (loss) per share — as reported	$	.05		$	.09		$	(.03	)	$	.25
Basic earnings (loss) per share — pro forma	$	(.02	)	$	.01		$	(.17	)	$	.08
Diluted earnings (loss) per share — pro forma	$	(.02	)	$	.01		$	(.17	)	$	.07

In January 2003, the Financial Accounting Standards Board issued FASB Interpretation No. 46 (“FIN 46”), “Consolidation of Variable Interest Entities.” Variable interest entities are defined as entities with a level of invested equity that is not sufficient to fund future activities to permit it to operate on a stand-alone basis. We do not participate in variable interest entities.

In April 2003, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 149, Amendment of Statement 133 on Derivative Instruments and Hedging Activities (“SFAS No. 149”). The provisions of SFAS No. 149 amend and clarify the accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. SFAS No. 149 is effective for contracts entered into or modified after June 30, 2003. We currently have no derivative instruments and have not engaged in any material foreign currency hedging transactions.

In May 2003, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity (“SFAS No. 150”). SFAS No. 150 requires certain financial instruments that embody obligations of the issuer, and which have characteristics of both liabilities and equity, to be classified as liabilities. SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003. We do not have any financial instruments, as defined in SFAS No. 150, that have characteristics of both liabilities and equity.

3. Acquisition of Vista Software Solutions, Inc.

On April 30, 2003 we acquired substantially all the intellectual property of Vista Software Solutions, Inc. (“Vista”), and Vista’s active customer agreements for a total cost of $4.6 million, which includes the purchase price of $3.8 million plus $780,000 in direct costs of the acquisition. Vista is a provider of collaborative business-to-business software solutions that enable retailers and consumer goods manufacturers to more efficiently synchronize and integrate data, including product descriptions, product images, pricing and promotion information throughout their supply and demand chains. Vista’s solutions also enable consumer goods manufacturers to manage trade promotions, minimize trade deductions costs and more accurately forecast product demand. With this acquisition, we have expanded the JDA Portfolio with complementary software products that leverage the Microsoft .Net platform and address the critical need for server-to-server data synchronization in Internet-based collaborative commerce. The acquisition was accounted for as a purchase, and accordingly, the operating results of Vista have been included in our consolidated financial statements from the date of acquisition. Pro forma operating results have not been presented as the acquisition is not material to our consolidated financial statements. The following summarizes the fair values of the assets acquired and liabilities assumed at the date of acquisition.


Fair value of current assets acquired		$	662
Software technology			1,100
Customer lists			1,110
Other intangible assets			80
Goodwill			2,290
Deferred revenue			(681	)

	Total acquisition cost of Vista Software Solutions, Inc.		4,561
Accruals for direct costs related to the acquisition			(555	)

	Total cash expended to acquire Vista Software Solutions, Inc.	$	4,006

4. Subsequent Event — Acquisition of Engage, Inc.

On August 4, 2003 we acquired substantially all the remaining assets of Engage, Inc. (“Engage”) for $3.0 million in cash. We expect to spend an additional $1.0 million for assumed liabilities and direct costs related to the acquisition. Engage is a provider of enterprise advertising, marketing and promotion software solutions that improve a retailer’s promotion planning process and their delivery of marketing and advertising content. We intend to merge Engage’s advanced digital asset, content management and ad layout capabilities with our existing Portfolio Revenue Management and Portfolio Knowledge Base applications to further expand our JDA Portfolio with functionality that streamlines the communication and collaboration among a retailer’s merchandising, promotions, production and store operation teams. The acquisition will be accounted for as a purchase, and accordingly, the operating results of Engage will be included in our consolidated financial statements from the date of acquisition. Pro forma operating results will not be presented as the acquisition is not material to our consolidated financial statements.

5. Earnings per Share

Earnings per share for the three and six-month periods ended June 30, 2003 and 2002 is calculated as follows:


	Three Months				Six Months
	Ended June 30,				Ended June 30,

	2003		2002		2003			2002

Net income	$	1,291	$	2,677	$	(947	)	$	7,222
Shares – Basic earnings per share		28,506		28,071		28,479			27,729
Dilutive common stock equivalents		153		1,366		—			1,451

		28,659		29,437		28,479			29,180

Basic earnings per share	$	.05	$	.10	$	(.03	)	$	.26

Diluted earnings per share	$	.05	$	.09	$	(.03	)	$	.25

No common stock equivalents were included in the calculation of diluted loss per share for the six months ended June 30, 2003 as such common stock equivalents would be anti-dilutive.

6. Restructuring, Office Closure Costs and Other Charges, and Relocation Costs to Consolidate Development and Client Support Activities

In second quarter 2002 we recorded a $1.3 million restructuring charge for a workforce reduction of 53 full-time employees, primarily in the consulting services function in the Americas and Europe. All workforce reductions associated with this charge were made on or before June 30, 2002. All employees potentially impacted by this restructuring were notified of the plan of termination and the related benefits on or before June 30, 2002.

In fourth quarter 2002, we recorded a restructuring charge of $5.0 million for the workforce reduction and office closure costs to reorganize the Company in connection with the implementation of the Customer Value

Program (“CVP”), a worldwide initiative designed to (i) refocus the organization on delivering value to our existing customer base, (ii) strengthen our competitive position, (iii) improve the quality, satisfaction and efficiency of our customers’ experience with JDA, and (iv) increase revenue and improve our operating results.

Implementation of the CVP includes adjustments to our workforce and a reallocation of our resources in response to a fundamental shift in the way we develop product and bring it to market, as well as to changes in the demand for the various types of products we sell, the length of implementation efforts required and associated skill requirements. The workforce reduction enabled us to better align our cost structure during the current economic downturn, which has adversely impacted our revenues, elongated our selling cycles, and delayed, suspended or reduced the demand for certain of our products. The reorganization resulted in the consolidation of nearly all product development and client support activities at our corporate headquarters, a workforce reduction of approximately 230 full-time employees (“FTE”) and certain office closures. The workforce reduction included certain employees involved in product development (73 FTE) and client support services (28 FTE) who chose not to relocate, and reductions in consulting services personnel (66 FTE), sales and marketing personnel (37 FTE), and administrative functions (26 FTE). We have hired or expect to hire approximately 35 FTE in product development and client support services to replace those individuals who chose not to relocate to our corporate headquarters. All employees potentially impacted by this reorganization were notified of the plan of termination and the related benefits on or before December 31, 2002. Office closure costs pertain to certain US, Latin American, and European offices that were either under-performing or became redundant with the reorganization.

Approximately 150 people were offered the opportunity to relocate as part of the CVP initiative to consolidate our development and client support activities. As of June 30, 2003, a total of 36 employees have relocated and we currently anticipate that an additional 15 employees will relocate in the next three to six months. We have negotiated temporary retention arrangements ranging from nine months to two years with 41 employees who have chosen not to relocate in order to facilitate a smooth transition. In addition, approximately 40 employees have been hired or transferred from other departments within the Company to fill certain of the development and client support positions. We have incurred $1.7 million in relocation costs through June 30, 2003, including $578,000 and $1.3 million during the three and six months ended June 30, 2003, respectively. We expect to incur an additional $500,000 to $600,000 in relocation costs during the next three months to complete the consolidation of development and client support activities. The relocation costs have been reported in income from continuing operations as incurred. Accordingly, there was no accrued liability associated with these charges at June 30, 2003 or December 31, 2002.

A summary of the 2002 restructuring and office closure charges included in accrued expenses and other liabilities is as follows:


		Initial		Cash			Loss on disposal			Balance at		Cash			Balance at
Description of the charge		Reserve		Charges			of assets			Dec 31, 2002		Charges			June 30, 2003

Severance, benefits and legal costs		$	5,204	$	(2,635	)	$	—		$	2,569	$	(2,012	)	$	557
Office closure costs			1,083		(28	)		(47	)		1,008		(208	)		800

	Total	$	6,287	$	(2,663	)	$	(47	)	$	3,577	$	(2,220	)	$	1,357

The unpaid balance of severance and termination benefits pertains primarily to termination agreements with foreign employees that are either being disputed or are required to be paid out over a period of time under local law. We expect these amounts to be paid out by December 31, 2003. The remaining amounts in the reserve for office closure costs are being paid out as the leases and related subleases run through their remaining terms.

7. Stock Repurchase Program

In July 2002, our Board of Directors authorized the repurchase of up to two million shares of our outstanding common stock. Under this repurchase program, we may periodically repurchase common shares on the open market at prevailing market prices during a one-year period ending July 22, 2003. As of June 30, 2003, we have repurchased a total of 175,000 shares of our common stock for $1.8 million under this program, including 75,000 shares that were purchased during the six months ended June 30, 2003 for $757,000.

8. E3 Acquisition Reserves

In conjunction with the acquisition of E3 Corporation (“E3”) in September 2001, we recorded initial acquisition reserves of approximately $14.6 million for restructuring charges and other direct costs associated with the acquisition. These costs related primarily to facility closures, employee severance, investment banker fees, and legal and accounting costs. We subsequently increased the purchase price and the E3 acquisition reserves by $1.3 million during 2002 based on our revised estimates of the restructuring costs to exit the activities of E3 and the other direct costs of the acquisition. The unused portion of the acquisition reserves, which are included in accrued expenses and other liabilities on the balance sheet, was $707,000 at June 30, 2003 and $1.2 million at December 31, 2002. A summary of the charges and adjustments recorded against the reserves are as follows:


										Balance at								Balance at
		Initial		Cash			Adjustments			December 31,		Cash			Non-Cash			June 30,
Description of charge		Reserve		Charges			to Reserve			2002		Charges			Charges			2003

Restructuring charges under EITF 95-3:
Facility termination and sublease costs		$	4,689	$	(5,040	)	$	1,129		$	778	$	(218	)	$	(25	)	$	535
Employee severance and termination benefits			4,351		(4,115	)		184			420		(248	)					172
Termination payments to distributors			500		(100	)		(400	)		—		—			—			—
E3 user group and trade show cancellation fees			84		(72	)		(12	)		—		—			—			—
Direct costs under SFAS 141:
Legal and accounting costs			2,344		(2,709	)		407			42		(42	)		—			—
Investment banker fees			2,119		(2,119	)		—			—		—			—			—
Due diligence fees and expenses			350		(376	)		26			—		—			—			—
Filing fees, appraisal services and transfer taxes			110		(100	)		(10	)		—		—			—			—

	Total	$	14,547	$	(14,631	)	$	1,324		$	1,240	$	(508	)	$	(25	)	$	707

The facility termination and sublease costs are costs of a plan to exit an activity of an acquired company as described in Financial Accounting Standards Board Emerging Issues Task Force Issue No. 95-3 (“EITF No. 95-3”), Recognition of Liabilities in Connection with a Purchase Business Combination, and include the estimated costs of management’s plan to shut down nine offices of E3 shortly after the acquisition date. These costs have no future economic benefit to the Company and are incremental to the other costs incurred by the Company or E3. Immediately following the consummation of the E3 acquisition, the Company engaged real estate advisers and began the necessary activities to shut down the offices and sublet the locations or negotiate early termination agreements with the various landlords. The most significant E3 facility (the former Corporate Headquarters) was difficult to sublet and in July 2002 we settled with the landlord by paying a $3.4 million lease termination fee. This resulted in a $950,000 adjustment to the facility termination and sublease costs acquisition reserve. The remaining amounts in this reserve are being paid out as the leases and any related subleases run through their remaining terms.

Employee severance and termination benefits are costs resulting from a plan to involuntarily terminate employees from an acquired company as described in EITF No. 95-3. As of the consummation date of the acquisition, executive management approved a plan to involuntarily terminate approximately 31% of the 338 full time employees of E3. In the first three months following the consummation of the E3 acquisition, management completed the assessment of which employees would be involuntarily terminated and communicated the termination arrangements to the affected employees in accordance with statutory requirements of the local jurisdictions in which the employees were located. We expect all amounts for these exit costs to be paid out before September 30, 2003.

9. Business Segments and Geographic Data

We are a leading provider of sophisticated software solutions designed specifically to address the demand and supply chain management, business process, decision support, e-commerce, inventory optimization and collaborative planning and forecasting requirements of the retail industry and its suppliers. Our solutions enable our customers to collect, manage, organize and analyze information throughout their retail enterprise, and to collaborate with suppliers and customers over the Internet at multiple levels within their organizations. We conduct business in three geographic regions that have separate management teams and reporting structures: the Americas (includes the United States, Canada and Latin America), Europe (includes the Middle East and Africa), and Asia/Pacific. Similar products and services are offered in each geographic region and local management is evaluated primarily based on total revenues and operating income. Identifiable assets are also managed by geographical region. The geographic distribution of our revenues and identifiable assets is as follows:


			Three Months						Six Months
			Ended June 30,						Ended June 30,

			2003			2002			2003			2002

Revenues:
	Americas		$	33,605		$	35,003		$	58,911		$	76,270
	Europe			16,092			17,218			28,293			31,024
	Asia/Pacific			4,785			5,990			10,042			10,636

				54,482			58,211			97,246			117,930
	Sales and transfers among regions			(1,517	)		(627	)		(3,026	)		(1,196	)

		Total revenues	$	52,965		$	57,584		$	94,220		$	116,734


			June 30,		December 31,
			2003		2002

Identifiable assets:
	Americas		$	257,624	$	260,502
	Europe			44,447		43,446
	Asia/Pacific			10,773		11,106

		Total identifiable assets	$	312,844	$	315,054

We have organized our business segments around the distinct requirements of retail enterprises, retail stores, and suppliers to the retail industry:

• Retail Enterprise Systems include corporate level merchandise management systems that enable retailers to optimize their inventory control, product mix, pricing and promotional strategies, automate demand forecasting and replenishment, and enhance the productivity and accuracy of warehouse processes. In addition, Retail Enterprise Systems include a comprehensive set of tools for analyzing business results and trends, tracking customer shopping patterns, space management, trade allowance and promotional program management, and for monitoring strategic plans and tactical decisions.

• In-Store Systems include point-of-sale, e-commerce and back office applications that enable retailers to capture, analyze and transmit certain sales, store inventory and other operational information to corporate level merchandise management systems using hand-held, radio frequency devices, point-of-sale workstations or via the Internet.

• Collaborative Solutions include applications that enable business-to-business collaborative planning, forecasting and replenishment between retailers and their suppliers. Collaborative Solutions, which currently include portions of Retail Enterprise Systems applications that can be used by suppliers as well as collaboration specific solutions, enable retailers and their suppliers to optimize the sharing of plans, information and supply chain decisions between trading partners in such areas as inventory replenishment, marketing/promotions, sales planning/execution and category management.

A summary of the revenues, operating income (loss), and depreciation attributable to each of these business segments for the three and six months ended June 30, 2003 and 2002 is as follows:


		Three Months						Six Months
		Ended June 30,						Ended June 30,

		2003			2002			2003			2002

Revenues:
	Retail Enterprise Systems	$	36,266		$	39,229		$	64,035		$	80,844
	In-Store Systems		3,523			7,490			6,468			14,236
	Collaborative Solutions		13,176			10,865			23,717			21,654

		$	52,965		$	57,584		$	94,220		$	116,734

Operating income (loss):
	Retail Enterprise Systems	$	4,614		$	9,159		$	6,307		$	18,894
	In-Store Systems		(49	)		2,431			(456	)		4,207
	Collaborative Solutions		3,980			2,203			5,409			5,345
	Other (see below)		(7,577	)		(10,065	)		(14,280	)		(18,256	)

		$	968		$	3,728		$	(3,020	)	$	10,190

Depreciation:
	Retail Enterprise systems	$	1,714		$	1,452		$	3,321		$	2,968
	In-Store systems		236			300			472			567
	Collaborative Solutions		381			341			839			607

		$	2,331		$	2,093		$	4,632		$	4,142

Other:
	Amortization of intangible assets	$	732		$	712		$	1,444		$	1,426
	In-process research and development charge		—			800			—			800
	Relocation costs to consolidate development and support activities		578			—			1,260			—
	Restructuring, office closure costs and other charges		—			1,295			—			1,295
	General and administrative expenses		6,267			7,258			11,576			14,735

		$	7,577		$	10,065		$	14,280		$	18,256

Operating income in the Retail Enterprise Systems, In-Store Systems and Collaborative Solutions business segments includes direct expenses for software licenses, maintenance services, service revenues, amortization of acquired software technology, sales and marketing expenses, product development expenses, as well as allocations for occupancy costs and depreciation expense. The “Other” caption includes general and administrative expenses and other charges that are not directly identified with a particular business segment and which management does not consider in evaluating the operating income of the business segment.

Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations.

This Quarterly Report on Form 10-Q contains forward-looking statements reflecting management’s current forecast of certain aspects of our future. It is based on current information that we have assessed but which by its nature is dynamic and subject to rapid and even abrupt changes. Forward-looking statements include statements regarding future operating results, liquidity, capital expenditures, product development and enhancements, numbers of personnel, strategic relationships with third parties, acquisitions and strategy. The forward-looking statements are generally accompanied by words such as “plan,” “estimate,” “expect,” “intend,” “believe,” “should,” “would,” “could,” “anticipate” or other words that convey uncertainty of future events or outcomes. Our actual results could differ materially from those stated or implied by our forward-looking statements due to risks and uncertainties associated with our business. These risks are described throughout this Quarterly Report on Form 10-Q, which you should read carefully. We would particularly refer you to the section under the heading “Factors That May Affect Our Future Results or The Market Price of Our Stock” for an extended discussion of the risks confronting our business. The forward-looking statements in this Quarterly Report on Form 10-Q should be considered in the context of these risk factors.

Overview

customers to collect, manage, organize and analyze information throughout their retail enterprise, and to collaborate with suppliers and customers over the Internet at multiple levels within their organization. We also offer maintenance services to our software customers, and enhance and support our software business by offering retail specific services that are designed to enable our clients to rapidly achieve the benefits of our solutions. These services include project management, system planning, system design and implementation, custom configurations, and training services. Demand for our implementation services is driven by, and often trails, sales of our software products. Consulting services revenues are generally more predictable but generate lower gross margins than software license revenues.

Significant Trends and Developments in Our Business

Economic Conditions Continue to Impact our Operating Results. Our operating results continue to be impacted by weak economic conditions in certain of our geographic regions and the continued weakness in the retail industry. In addition, we believe our operating results during the first half of 2003 have been negatively impacted by the disruption from the early phases of implementation of the Customer Value Program (see “The Reorganization of the Company and the Implementation of the Customer Value Program have Impacted our Operating Results”), the US war with Iraq, the economic uncertainty related to the threat of future terrorist attacks and wars, and the Severe Acute Respiratory Syndrome (“SARS”).

The retail industry has increased its due diligence on large capital outlays in the current economic environment and the decision-making process for investments in information technology has been highly susceptible to deferral. This has elongated our sales cycles and impacted our ability to predict the size and timing of individual contracts. For example, we signed four large software licenses ($1.0 million or greater) during second quarter 2003 as compared to none during first quarter 2003, three in fourth quarter 2002 and one in second quarter 2002. We continue to believe that delays in the decision-making process have been, and may continue to be, the most significant issue affecting our software license revenue results.

Economic conditions have negatively impacted the demand for our Portfolio Merchandise Management Systems and Portfolio Store Systems over the past two years and we believe there is no evidence to support a turnaround in the poor performance of the transaction systems market in the near term. We believe the next driver for growth in the transaction systems market will be sustained economic improvement and the introduction and acceptance of our Java-based In-Store System that was commercially released in June 2003, and the .Net Platform version of our Portfolio Merchandise Management Systems which is under development. Since 2001, the majority of our software license revenues have been associated with our Strategic Merchandise Management Solutions that require lower levels of services to implement and provide a quicker return on investment.

Software license revenues from existing customers, as a percentage of total software license revenues, has increased over the past two years, and represented 84% of total software revenues during the six months ended June 30, 2003 compared to 59% in the six months ended June 30, 2002. We believe this metric is a direct result of our large customer base, that was principally amassed through our acquisition activities in 2000 and 2001, and the focus we have placed on selling more JDA Portfolio products to existing customers through our Customer Value Program. In the current economic environment, we believe existing customers may find it easier to commit to purchase additional products from an established vendor that offers a broad range of solutions. Over the past three years, the addition of Strategic Merchandise Management Solutions such as Portfolio Space Management by Intactix and Portfolio Replenishment by E3 to the JDA Portfolio have provided significant back-selling opportunities in our customer base. The majority of the customers that we have acquired only own one JDA product.

Our sales pipeline remains large, and we believe there are a significant number of sales opportunities that will support sustained activity at the level we saw in second quarter 2003. We currently anticipate that our software license revenue results for third quarter 2003 will improve compared to third quarter 2002.

We believe that economic conditions have begun to show some recovery in the Americas region, however adverse economic conditions continue to impact the Europe and Asia/Pacific regions. The retail industry will be adversely impacted if negative economic conditions, fear of additional wars, continued violence in Iraq, or terrorists’ attacks persist for an extended period of time. Weak and uncertain economic conditions have in the past, and may in the future, negatively impact our revenues, elongate our selling cycles, and delay, suspend or reduce the demand for

our products. As a result, it is difficult in the current economic environment to predict exactly when specific software licenses will close within a six to nine month time frame. In addition, we believe that pricing pressure has increased in response to the economic downturn, which has and could cause us to offer more significant discounts, or in some cases to lose potential business to competitors willing to offer what we believe to be overly aggressive discounts. Further, weak and uncertain economic conditions could cause a deterioration of our customers’ creditworthiness in the future and impair our customers’ ability to pay for our products or services or cause an increase in bankruptcy filings in our customer base. Any of these factors could adversely impact our business, quarterly or annual operating results and financial condition.

The Reorganization of the Company and the Implementation of the Customer Value Program have Impacted our Operating Results. In fourth quarter 2002, we recorded a restructuring charge of $5.0 million for the workforce reduction and office closure costs to reorganize the Company in connection with the implementation of the Customer Value Program (“CVP”), a worldwide initiative designed to (i) refocus the organization on delivering value to our existing customer base, (ii) strengthen our competitive position, (iii) improve the quality, satisfaction and efficiency of our customers’ experience with JDA, and (iv) increase revenue and improve our operating results. Implementation of the CVP included adjustments to our workforce and a reallocation of our resources in response to a fundamental shift in the way we develop product and bring it to market, as well as to changes in the demand for the various types of products we sell, the length of implementation efforts required and associated skill requirements. The workforce reduction enabled us to better align our cost structure during the current economic downturn, which has adversely impacted our revenues, elongated our selling cycles, and delayed, suspended or reduced the demand for certain of our products.

As anticipated, our decision to reorganize the Company and implement the CVP caused initial disruptions in our sales, services and training functions that negatively impacted our revenues and operating results in first quarter 2003. Although we believe the most significant negative impact of the CVP implementation is behind us, the costs and risks associated with the widespread changes contemplated in the CVP may continue to adversely affect our operating results throughout the remainder of 2003.

In addition to the restructuring charge, we have incurred $1.7 million in relocation costs through June 30, 2003, including $578,000 and $1.3 million during the three and six months ended June 30, 2003, respectively, to consolidate our development and client support activities. We expect to incur an additional $500,000 to $600,000 in relocation costs during the next three months to complete the consolidation of development and client support activities. The relocation costs have been reported in income from continuing operations as incurred. Accordingly, there was no accrued liability associated with these charges at June 30, 2003 or December 31, 2002.

Our Service Revenues Continue to Decline. Service revenues, which include consulting services, training revenues and reimbursed expenses, decreased 28% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002, primarily due to a decrease in demand for the implementation of Portfolio Merchandise Management Systems and Portfolio Store Systems. As a result of the economic downturn, we believe retailers have changed their buying behavior and that this has resulted in a fundamental shift in the mix of demand for the various types of products we sell from high dollar projects to lower cost point solutions. We also believe the average implementation times for our software products have declined due to increased training and expertise in our consulting organization, and as a direct result of the investments we have made over the past few years to increase the functionality, stability, scalability, integration and ease of implementation of the products in the JDA Portfolio. Furthermore, since 2001 the majority of our product demand has been associated with our Strategic Merchandise Management Solutions that require lower levels of services to implement, and it is therefore harder to manage the proper staffing levels. As a result of these changes in our business and product revenue mix, we expect service revenues to continue to decline until economic conditions improve and the demand for Portfolio Merchandise Management Systems and Portfolio Store Systems and the related implementation services returns.

Merchandise Management Systems and Portfolio Store Systems and the related implementation services, the disruption caused by the roll-out of the CVP in first quarter 2003 which required significant training time for the affected service employees, and the improved integration and reduced implementation timeframes for products in the JDA Portfolio. The effect of lower service revenues on our margins was offset in part by a $1.2 million decrease in employee costs during the six months ended June 30, 2003 related to consulting services employees who were used to supplement new product development and quality assurance activities, and to assist with business development and client support activities under the CVP. The cross-utilization of consulting services employees is expected to continue during the remainder of 2003, although at varying rates, which will cause our consulting margins to fluctuate. We expect service margins will be lower for the remainder of 2003. In addition, we are continuously reviewing our long-term staffing requirements in each region and will adjust our service headcounts downward where appropriate.

We Continue to Invest in New Product Development and Have Expanded Our Markets. We invested $26.8 million in the six months ended June 30, 2003, and approximately $292 million from 1998 to 2002 in new product development and the acquisition of complimentary products while remaining profitable and cash flow positive from operations. We released enhanced versions of our core software products during the past two years and introduced new value-added web-based applications such as Store Portal, Affinity and Marketing Expense Management. In addition, the acquisitions of Intactix, Zapotec, NeoVista Decision Series, E3, and Vista expanded our product offerings, and provided us with collaborative applications that address new vertical market opportunities with the manufacturers and wholesalers who supply our traditional retail customers. The Collaborative Solutions business segment, which includes sales of software license and services to customers outside the retail market, provided 25% of our total revenues in the six months ended June 30, 2003 compared to 19% in the six months ended June 30, 2002. Our collaborative specific solutions enable retailers and their suppliers to optimize the sharing of plans, information and supply chain decisions between trading partners in such areas of inventory replenishment, marketing/promotions, sales planning/execution and category management. As of June 30, 2003, there are nearly 160 trading partners worldwide that are live and operational on our Marketplace Replenishment application that enables manufacturers, distributors and retailers to work from a single, shared demand forecast. We believe our strategy of expanding our product portfolio and increasing the scalability of our products has been the key element in attracting larger retail customers, and we believe that it has resulted in a steady pattern of new customers licensing multiple products, as well as enhanced back-selling opportunities in our customer base.

We are developing a series of enhancements to the JDA Portfolio products, based upon the Microsoft .Net technology platform (“.Net Platform”), that we believe will position us uniquely in the retail and collaborative solutions markets. Our goals are to ensure that our solutions offer: (i) increased ease of use, (ii) increased integration of business processes, (iii) reduced cost of ownership, (iv) faster implementation, and (v) faster return on investment. We believe our next generation technology will enhance our competitive position since we will be able to offer significant features and functionality using an advanced technology platform. Our goal is to eliminate lower value services associated with the implementation of our products, and as a result, we may experience a reduction in the revenue associated with certain of our consulting services offerings. We believe that this reduced revenue will be more than offset by increased software and maintenance revenues, and increased revenue from strategic consulting and education services. The first step in the execution of this strategy began in June 2002 with the delivery of JDA Portfolio 2003 – the first ever fully synchronized, integrated release of all of our products. Our goal is to begin delivering applications on the .Net Platform in mid-2004, starting with Portfolio Replenishment by E3, Portfolio Planning by Arthur, and certain of our Intellect applications.

During second quarter 2003 we announced the commercial availability of our Java-based In-Store System. We do not believe the In-Store Systems business segment will grow until economic conditions improve and early adopters of the Java-based In-Store System product complete their implementations and become referenceable.

During second quarter 2003 we announced a JDA Portfolio Investment Protection Program that provides existing customers with an upgrade path to the new .Net Platform for like-to-like functionality, without any additional license fees, provided they are under a current maintenance agreement on their existing JDA products. Customers will be charged additional license fees for new features and functionality and will pay any required third

party charges associated with the new platform. Customers will relinquish all rights to use the previously licensed JDA products following a reasonable transition period.

We Have Completed the Acquisitions of Vista Software Solutions, Inc. and Engage, Inc. On April 30, 2003 we acquired substantially all the intellectual property of Vista Software Solutions, Inc. (“Vista”), and Vista’s active customer agreements for a total cost of $4.6 million, which includes the purchase price of $3.8 million plus $780,000 in direct costs of the acquisition. Vista is a provider of collaborative business-to-business software solutions that enable retailers and consumer goods manufacturers to more efficiently synchronize and integrate data, including product descriptions, product images, pricing and promotion information throughout their supply and demand chains. Vista’s solutions also enable consumer goods manufacturers to manage trade promotions, minimize trade deductions costs and more accurately forecast product demand. With this acquisition, we have expanded the JDA Portfolio with complementary software products that leverage the Microsoft .Net platform and address the critical need for server-to-server data synchronization in Internet-based collaborative commerce. The acquisition was accounted for as a purchase, and accordingly, the operating results of Vista have been included in our consolidated financial statements from the date of acquisition. In connection with the Vista acquisition, we added 13 new employees, primarily in product development, and recorded $2.3 million of goodwill, $1.1 million in software technology, and $1.2 million for customer lists and other intangibles. Vista contributed $325,000 in total revenues during second quarter 2003, including $100,000 in software license revenues and $197,000 in maintenance services revenue. Pro forma operating results have not been presented as the acquisition is not material to our consolidated financial statements.

Our Financial Position is Strong and We Have Positive Operating Cash Flow. We continue to maintain a strong financial position during the current difficult economic cycle with $114.3 million in cash, cash equivalents and marketable securities, and no debt. In addition, during the six months ended June 30, 2003 we generated $18 million in positive cash flow from operations.

Promotion of Hamish N. Brewer to Chief Executive Officer. Hamish N. Brewer was promoted to Chief Executive Officer on August 4, 2003 having served as our President since April 2001 and as a senior officer of the Company since 1996. He succeeds James D. Armstrong who will continue as Chairman of the Board. As Chairman, Mr. Armstrong will retain his active leadership role, focusing on strategic planning, merger and acquisition opportunities, major product decisions and key customer relationships.

Critical Accounting Policies

We have identified the policies below as critical to our business operations and the understanding of our results of operations. The impact and any associated risks related to these policies on our business operations is discussed throughout Management’s Discussion and Analysis of Financial Condition and Results of Operations where such policies affect our reported and expected financial results. The preparation of this Quarterly Report on Form 10-Q requires us to make estimates and assumptions that affect the reported amount of assets and liabilities, disclosure of contingent assets and liabilities at the date of our financial statements, and the reported amounts of revenue and expenses during the reporting period. There can be no assurance that actual results will not differ from those estimates.

• Revenue recognition. Our revenue recognition policy is significant because our revenue is a key component of our results of operations. In addition, our revenue recognition determines the timing of certain expenses such as commissions and royalties. We follow specific and detailed guidelines in measuring revenue;

however, certain judgments affect the application of our revenue policy.

We license software under non-cancelable agreements and provide related services, including consulting, training and customer support. We recognize revenue in accordance with Statement of Position 97-2 (“SOP 97-2”), Software Revenue Recognition, as amended and interpreted by Statement of Position 98-9, Modification of SOP 97-2, Software Revenue Recognition, with respect to certain transactions, as well as Technical Practice Aids issued from time to time by the American Institute of Certified Public Accountants. We adopted Staff Accounting Bulletin No. 101 (“SAB 101”), Revenue Recognition in Financial Statements, during first quarter 2000. SAB 101 provides further interpretive guidance for public companies on the recognition, presentation, and disclosure of revenue in financial statements. The adoption of SAB 101 did not have a material impact on our licensing or revenue recognition practices.

Software license revenue is recognized when a license agreement has been signed, the software product has been delivered, there are no uncertainties surrounding product acceptance, the fees are fixed and determinable, and collection is considered probable. If a software license contains an undelivered element, the vendor-specific objective evidence (“VSOE”) of fair value of the undelivered element is deferred and the revenue recognized once the element is delivered. The undelivered elements are primarily training, consulting and maintenance services. VSOE of fair value for training and consulting services is based upon standard hourly rates charged when those services are sold separately. VSOE of fair value for maintenance is the price the customer will be required to pay when it is sold separately (that is, the renewal rate). In addition, if a software license contains customer acceptance criteria or a cancellation right, the software revenue is recognized upon the earlier of customer acceptance or the expiration of the acceptance period or cancellation right. Payments for our software licenses are typically due in installments within twelve months from the date of delivery. Although infrequent, where software license agreements call for payment terms of twelve months or more from the date of delivery, revenue is recognized as payments become due and all other conditions for revenue recognition have been satisfied.

Consulting and training services are separately priced, are generally available from a number of suppliers, and are not essential to the functionality of our software products. Consulting services, which include project management, system planning, design and implementation, customer configurations, and training are billed on both an hourly basis and under fixed price contracts. Consulting services revenue billed on an hourly basis is recognized as the work is performed. Training revenues are recognized when the training is provided and is included in consulting revenues in the Company’s consolidated statements of income. Under fixed price contracts, consulting services revenue is recognized using the percentage of completion method of accounting by relating hours incurred to date to total estimated hours at completion.

We have from time to time provided software and consulting services under fixed price contracts that require the achievement of certain milestones and payment terms in these contracts are generally tied to customer acceptance of the milestones. The revenue under such arrangements is recognized as the milestones are achieved or upon customer acceptance. We believe that milestones are a proper measure of progress under these contracts, as the milestones approximate the percentage of completion method of accounting.

Customer support services include post contract support and the rights to unspecified upgrades and enhancements. Maintenance revenues from ongoing customer support services are billed on a monthly basis and recorded as revenue in the applicable month, or on an annual basis with the revenue being deferred and recognized ratably over the maintenance period. If an arrangement includes multiple elements, the fees are allocated to the various elements based upon VSOE of fair value, as described above.

• Accounts Receivable. Consistent with industry practice and to be competitive in the retail software marketplace, we typically provide installment payment terms on most software license sales. Software licenses are generally due in installments within twelve months from the date of delivery. All significant customers are reviewed for creditworthiness before the Company licenses its software and we do not sell our software or recognize any license revenue unless we believe that collection is probable in accordance with the requirements of paragraph 8 in SOP 97-2. We have a history of collecting software payments

when they come due without providing refunds or concessions. Consulting services are billed bi-weekly and maintenance services are billed annually or monthly. If a customer becomes significantly delinquent or its credit deteriorates, we put the accounts on hold and do not recognize any further services revenue (and in most cases we withdraw support and/or our implementation staff) until the situation has been resolved.

We do not have significant billing or collection problems. Although infrequent and unpredictable, from time to time certain of our customers have filed bankruptcy and we have been required to refund the pre-petition amounts collected and settle for less than the face value of its remaining receivable pursuant to a bankruptcy court order. In these situations, as soon as it becomes probable that the net realizable value of the receivable is impaired, we provide reserves on the receivable. In addition, we monitor economic conditions in the various geographic regions in which it operates to determine if general reserves or adjustments to its credit policy in a region are appropriate for deteriorating conditions that may impact the net realizable value of our receivables.

• Intangible Assets. Our business combinations typically result in goodwill and other intangible assets, which affects the amount of future period amortization expense and possible impairment expense that we will incur. The determination of the value of such intangible assets and the annual impairment tests require management to make estimates of future revenues, customer retention rates and other assumptions that affect our consolidated financial statements.

• Income Taxes. Our income tax policy records the estimated future tax effects of temporary differences between the tax basis of assets and liabilities and amounts reported in the consolidated balance sheets, as well as operating loss and tax credit carry-forwards. We follow specific and detailed guidelines regarding the recoverability of any tax assets recorded on the balance sheet and provide any necessary allowances as required.

• Stock-Based Compensation. We do not record compensation expense for options granted to our employees as all options granted under our stock option plans have an exercise price equal to the market value of the underlying common stock on the date of grant. As permitted under Statement of Financial Accounting Standards No. 123, Accounting for Stock-Based Compensation (“SFAS No. 123”), we have elected to continue to apply the provisions of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees, and provide pro forma disclosure on a quarterly and annual basis of net income (loss) and net income (loss) per common share for employee stock option grants made as if the fair-value method defined in SFAS No. 123 had been applied.

Recent Accounting Pronouncements

In December 2002, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 148, Accounting for Stock-Based Compensation — Transition and Disclosure (“SFAS No. 148”) which is effective for fiscal years ending after December 15, 2002. SFAS No. 148 amends SFAS No. 123 to provide alternative methods of transition to SFAS No. 123’s fair value method of accounting for stock-based employee compensation if a company elects to account for its equity awards under this method. SFAS No. 148 also amends the disclosure provisions of SFAS No. 123 and APB Opinion No. 28, Interim Financial Reporting, to require disclosure of the effects of an entity’s accounting policy with respect to stock-based employee compensation on reported net income and earnings per share in both annual and interim financial statements. We are currently evaluating which method of transition to fair value accounting we will elect.


	Three Months						Six Months
	Ended June 30,						Ended June 30,

	2003			2002			2003			2002

Net income (loss) as reported	$	1,291		$	2,677		$	(947	)	$	7,222
Less: stock-based compensation expense, net of related tax effects		(1,884	)		(2,350	)		(3,791	)		(5,034	)

Pro forma net income (loss)	$	(593	)	$	327		$	(4,738	)	$	2,188
Basic earnings (loss) per share — as reported	$	.05		$	.10		$	(.03	)	$	.26
Diluted earnings (loss) per share — as reported	$	.05		$	.09		$	(.03	)	$	.25
Basic earnings (loss) per share — pro forma	$	(.02	)	$	.01		$	(.17	)	$	.08
Diluted earnings (loss) per share — pro forma	$	(.02	)	$	.01		$	(.17	)	$	.07

Three months ended June 30, 2003 Compared to Three months ended June 30, 2002

Revenues consist of product revenues and services revenue, which represented 62% and 38%, respectively, of total revenues in the three months ended June 30, 2003 compared to 56% and 44%, respectively in the three months ended June 30, 2002. Total revenues for the three months ended June 30, 2003 were $53.0 million, a decrease of $4.6 million, or 8%, from the $57.6 million reported in the three months ended June 30, 2002.

Product Revenues

Software Licenses. Software license revenues for the three months ended June 30, 2003 decreased 15% to $15.5 million from $18.3 million in the three months ended June 30, 2002. Software license sales continue to be impacted by weak economic conditions and the disappointing results of the retail industry. In addition, we believe software license sales were negatively impacted in the three months ended June 30, 2003 by the continued violence in Iraq, the economic uncertainty related to the threat of future terrorist attacks and wars, and the outbreak of SARS in the Asia/Pacific region.

Software license revenues from existing customers, as a percentage of total software license revenues, has increased over the past two years, and represented 92% of total software revenues during the three months ended June 30, 2003 compared to 48% in the three months ended June 30, 2002. We believe this metric is a direct result of our large customer base, that was principally amassed through our acquisition activities in 2000 and 2001, and the focus we have placed on selling more JDA Portfolio products to existing customers through our Customer Value Program. In the current economic environment, we believe existing customers may find it easier to commit to purchase additional products from an established vendor that offers a broad range of solutions. Over the past three years, the addition of Strategic Merchandise Management Solutions such as Portfolio Space Management by Intactix and Portfolio Replenishment by E3 to the JDA Portfolio have provided significant back-selling opportunities in our customer base. The majority of the customers that we have acquired only own one JDA product.

Software license revenues in the Retail Enterprise Systems business segment decreased 10% in the three months ended June 30, 2003 compared to the three months ended June 30, 2002. In-Store Systems software license revenues decreased 71% in the three months ended June 30, 2003 compared to the three months ended June 30, 2002. We do not expect the revenues in the In-Store Systems segment to improve until we begin to increase market share with our new Java-based In-Store System product that was commercially released in June 2003. Collaborative Solutions software license revenues decreased 3% in the three months ended June 30, 2003 compared to the three months ended June 30, 2002.

Software license revenues in the Americas increased 28% in the three months ended June 30, 2003 compared to the three months ended June 30, 2002 due to increases in software license revenues related to Retail Enterprise Systems and Collaborative Solutions applications of 44% and 13%, respectively, offset in part by a 5% decrease in software license revenues related to In-Store Systems. Software license revenues in Europe decreased 47% in the three months ended June 30, 2003 compared to the three months ended June 30, 2002 due to decreases in software license revenues related to Retail Enterprise Systems, In-Store Systems, and Collaborative Solutions

applications of 41%, 98%, and 38%, respectively. Software license revenues in Asia/Pacific decreased 77% in the three months ended June 30, 2003 compared to the three months ended June 30, 2002 due to decreases in software license revenues related to Retail Enterprise Systems, In-Store Systems, and Collaborative Solutions applications of 77%, 99%, and 17%, respectively.

Maintenance Services. Maintenance services revenue for the three months ended June 30, 2003 increased 23% to $17.3 million from $14.0 million in the three months ended June 30, 2002 due primarily to increases in the customer base for Strategic Merchandise Management Solutions, offset in part by a decrease in maintenance services revenue from Portfolio Merchandise Management Systems due to cost saving actions by customers with heavily customized systems, bankruptcies and retail consolidations. We expect maintenance services revenue to increase sequentially in third quarter 2003 compared to second quarter 2003.

Service Revenues

Service revenues, which include consulting services, training revenues, and reimbursed expenses, decreased 20% in the three months ended June 30, 2003 to $20.2 million from $25.3 million in the three months ended June 30, 2002, primarily due to a decrease in demand for the implementation of and training services for Portfolio Merchandise Management Systems and Portfolio Store Systems. As a result of the economic downturn, we believe retailers have changed their buying behavior and that this has resulted in a fundamental shift in the mix of demand for the various types of products we sell from high dollar projects to lower cost point solutions. We also believe the average implementation times for our software products have declined due to increased training and expertise in our consulting organization, and as a direct result of the investments we have made over the past few years to increase the functionality, stability, scalability, integration and ease of implementation of the products in the JDA Portfolio. Furthermore, since 2001 the majority our product has been associated with our Strategic Merchandise Management Solutions that require lower levels of services to implement, and it is therefore harder to manage the proper staffing levels. As a result of these changes in our business and product revenue mix, we expect service revenues to continue to decline until economic conditions improve and the demand for Portfolio Merchandise Management Systems and Portfolio Store Systems and the related implementation services returns. We expect a modest decrease in service revenues in third quarter 2003 compared to second quarter 2003 as certain milestones on fixed priced contracts will not recur and certain Portfolio Merchandise Management Systems implementations are nearing completion.

Business Segment Revenues

Total revenues in our Retail Enterprise Systems business segment decreased 8% to $36.3 million in the three months ended June 30, 2003 from $39.2 million in the three months ended June 30, 2002, due to a decrease in demand for Portfolio Merchandise Management Systems, offset in part by an increase in demand for certain Strategic Merchandise Management Solutions including Portfolio Space Management by Intactix and Portfolio Replenishment by E3. Portfolio Merchandise Management Systems tend to be more heavily impacted during slow economic periods, as retailers are often reluctant to make substantial investments due to the slower expected return on investment. Further, there are fewer new retailers entering the market that are originating new demand versus replacement. In addition, these products typically have longer implementation time frames and our services group often performs the implementation services. As a result, the decline in software sales for these products is also having a negative impact on our consulting services revenue. The Retail Enterprise Systems business segment represented 68% of our total revenues in the three months ended June 30, 2003 which is comparable to the three months ended June 30, 2002.

Total revenues in our In-Store Systems business segment decreased 53% to $3.5 million in the three months ended June 30, 2003 from $7.5 million in the three months ended June 30, 2002. The Portfolio Store Systems in the In-Store Systems business segment tend to be heavily impacted during slower economic periods, as the implementation of a new point-of-sale system usually requires a substantial hardware investment. We believe that market acceptance of our new Java-based In-Store System will return this segment to growth once the early adopters complete their implementations and become referenceable. The In-Store Systems business segment represented 7% of total revenues in the three months ended June 30, 2003 compared to 13% in the three months ended June 30, 2002.

Total revenues in our Collaborative Solutions business segment increased 21% to $13.2 million in the three months ended June 30, 2003 from $10.9 million in the three months ended June 30, 2002, primarily due to an increase in Portfolio Space Management by Intactix revenues from non-retail customers. The Collaborative Solutions business segment is a focus area for growth as most of our customers in this segment currently own only one JDA product. The Collaborative Solutions business segment represented 25% of total revenues in the three months ended June 30, 2003 compared to 19% in the three months ended June 30, 2002.

Geographic Revenues

Total revenues in the Americas (includes the United States, Canada and Latin America) decreased 4% to $33.6 million in the three months ended June 30, 2003 from $35.0 million in the three months ended June 30, 2002 due to a 31% decrease in service revenues, offset in part by a 28% increase in software license revenues and a 17% increase in maintenance services revenue. We expect the Americas region to have improving software license revenues in the near term compared to prior years. We also expect service revenues in this region to continue to decline due to low demand for Portfolio Merchandise Management Systems and Portfolio Store Systems that have higher implementation requirements.

Total revenues in Europe decreased 7% to $16.1 million in the three months ended June 30, 2003 from $17.2 million in the three months ended June 30, 2002 due to a 47% decrease in software license revenues offset in part by a 40% increase in maintenance services revenue and a 16% increase in service revenues. The second quarter 2002 results included a significant multi-million dollar contract. We do not expect any significant improvement in software license or service revenues in the Europe region in the near term due to continued adverse economic conditions.

Total revenues in Asia/Pacific decreased 20% to $4.8 million in the three months ended June 30, 2003 from $6.0 million in the three months ended June 30, 2002 due to a 77% decrease in software license revenues offset in part by a 16% increase in maintenance services revenue and an 8% increase in service revenues. The SARS outbreak had an adverse effect on revenues in Asia/Pacific in second quarter 2003 as it limited our ability to visit new prospects as well as our existing customers. We do not expect any significant improvement in the Asia/Pacific region revenues in the near term.

Cost of Product Revenues

Cost of Software Licenses. Cost of software licenses was $182,000, or 1% of software license revenues in the three months ended June 30, 2003 compared to $713,000, or 4% of software license revenues in the three months ended June 30, 2002. The decrease in cost of software licenses results from the lower volume of software products sold in the three months ended June 30, 2003 that incorporate functionality from third party software providers and require the payment of royalties.

Amortization of Acquired Software Technology. Amortization of acquired software technology was $1.1 million in the three months ended June 30, 2003, which is comparable to the three months ended June 30, 2002.

Cost of Maintenance Services. Cost of maintenance services increased 27% to $4.4 million, or 25% of maintenance services revenue, in the three months ended June 30, 2003 from $3.4 million, or 25% of maintenance services revenue, in the three months ended June 30, 2002. The increase results primarily from additional headcount to support our growing customer base, and higher incentive compensation and benefit costs. At June 30, 2003, we had 147 employees in the customer support function.

Cost of Service Revenues

Cost of service revenues decreased 6% to $15.9 million in the three months ended June 30, 2003 from $16.9 million in the three months ended June 30, 2002. This decrease results primarily from an 18% decrease in average consulting services headcount, and an $826,000 decrease in employee costs during the three months ended June 30, 2003 related to consulting services employees who were used to supplement new product development and quality assurance activities, and to assist with business development activities under the CVP. These decreases were offset in part by higher incentive compensation and benefit costs in the three months ended June 30, 2003 compared

to the three months ended June 30, 2002. At June 30, 2003, we had 444 employees in the consulting services and training functions compared to 521 at June 30, 2002.

Gross Profit

Gross profit for the three months ended June 30, 2003 decreased 12% to $31.4 million, or 59% of total revenues, from $35.5 million, or 62% of total revenues in the three months ended June 30, 2002. The decrease in gross profit dollars and gross margin percentage results primarily from decreases in software license revenues and service revenues of 15% and 20%, respectively, offset in part by a 23% increase in maintenance services revenue. Software licenses and maintenance services revenue have substantially higher margins than service revenues.

Service revenue margins were 21% in the three months ended June 30, 2003, compared to 33% in the three months ended June 30, 2002. The decrease in service revenue margins is attributable to lower utilization of our consulting services personnel and higher incentive compensation and benefit costs. Despite significant headcount reductions in 2002 to counteract the decline in demand for services, our utilization rate decreased to 50% in the three months ended June 30, 2003 compared to 52% in the three months ended June 30, 2002. The lower utilization rates result primarily from the continuing weak economic conditions that have decreased the overall demand for Portfolio Merchandise Management Systems and Portfolio Store Systems and the related implementation services, and the improved integration and reduced implementation timeframes for products in the JDA Portfolio. The effect of lower utilization rates was offset in part by an $826,000 decrease in employee costs during the three months ended June 30, 2003 related to consulting services employees who were used to supplement new product development and quality assurance activities, and to assist with business development activities under the CVP. The cross-utilization of consulting services employees is expected to continue during the remainder of 2003, although at varying rates, which will cause our consulting margins to fluctuate. We expect service margins will be lower for the remainder of 2003. In addition, we are continuously reviewing our long-term staffing requirements in each region and will adjust our service headcounts downward where appropriate.

Operating Expenses

Product Development. Product development expenses for the three months ended June 30, 2003 increased 21% to $12.6 million from $10.4 million in the three months ended June 30, 2002. Product development expense, as a percentage of product revenues, was 38% in the three months ended June 30, 2003 compared to 32% in the three months ended June 30, 2002. The increase in product development during the three months ended June 30, 2003 includes increases in salaries, benefits, and incentive compensation costs for full-time employees involved in the ongoing development of a series of enhancements to the JDA Portfolio products based upon the .Net Platform and the development of further collaborative planning, forecasting and replenishment (“CPFR”) applications. In addition, product development expenses increased $319,000 during the three months ended June 30, 2003 for consulting services employees who were used to supplement the new product development and quality assurance activities of our internal .Net Platform developers, offset in part by lower travel, training and recruiting costs. We believe development of our software is essentially completed concurrent with the establishment of technological feasibility, and accordingly, no costs have been capitalized. At June 30, 2003, we had 371 employees in the product development function compared to 376 at June 30, 2002. We expect to invest approximately $12.0 million per quarter in product development for the remainder of 2003.

Sales and Marketing. Sales and marketing expenses for the three months ended June 30, 2003 decreased 9% to $10.2 million from $11.3 million in the three months ended June 30, 2002. Sales and marketing expense, as a percentage of total revenues, was 19% in the three months ended June 30, 2003 compared to 20% in the three months ended June 30, 2002. The decrease in sales and marketing expenses results primarily from an 18% decrease in average sales and marketing headcount, together with lower commissions, marketing and travel costs, offset in part by a $507,000 increase in costs during the three months ended June 30, 2003 for consulting services employees

who assisted with business development activities under the CVP. At June 30, 2003, we had 148 employees in the sales and marketing function including 67 direct sales representatives, 60 individuals in pre-sales positions, and 21 associates involved in the marketing function. At June 30, 2002, we had 179 employees in the sales and marketing function. Sales and marketing costs will continue to vary with our overall software and revenue performance for the remainder of 2003.

General and Administrative. General and administrative expenses for the three months ended June 30, 2003 decreased 14% to $6.3 million from $7.3 million in the three months ended June 30, 2002. General and administrative expense, as a percentage of total revenues, was 12% in the three months ended June 30, 2003 compared to 13% in the three months ended June 30, 2002. The decrease in general and administrative expenses results primarily from a 12% decrease in administrative headcount and $1.4 million lower bad debt expense, offset in part by higher insurance and incentive compensation costs. No bad debt provision was taken in the three months ended June 30, 2003 as our gross accounts receivable have decreased 32% since December 31, 2002 due to lower revenues, our product mix, and the collection of nearly $4.0 million in delinquent receivables. Our days sales outstanding (“DSO”) has improved to 56 days at June 30, 2003 compared to 79 DSO at December 31, 2002 and 100 DSO at June 30, 2002. General and administrative expenses for the three months ended June 30, 2002 included a $305,000 charge for a legal dispute with a customer.

Amortization of Intangibles. Amortization of intangibles was $732,000 in the three months ended June 30, 2003 compared to $712,000 in the three months ended June 30, 2002. The increase results from amortization of intangibles recorded in the acquisition of Vista on April 30, 2003.

Relocation Costs to Consolidate Development and Client Support Activities. Approximately 150 people were offered the opportunity to relocate as part of the CVP initiative to consolidate our development and client support activities. As of June 30, 2003, a total of 36 employees have relocated and we currently anticipate that an additional 15 employees will relocate in the next three months. We have negotiated temporary retention arrangements ranging from nine months to two years with 41 employees who have chosen not to relocate in order to facilitate a smooth transition. In addition, approximately 40 employees have been hired or transferred from other departments within the Company to fill certain of the development and client support positions. We have incurred $1.7 million in relocation costs through June 30, 2003 in connection with this initiative, including $578,000 in the three months ended June 30, 2003. We expect to incur an additional $500,000 to $600,000 in relocation costs during the next three months to complete the consolidation of development and client support activities. The relocation costs have been reported in income from continuing operations as incurred.

Purchased In-process Research and Development. We expensed $800,000 of purchased in-process research and development in the three months ended June 30, 2002 in connection with the acquisition of J•Commerce in April 2002.

Restructuring, Office Closure Costs and Other Charges. We recorded a $1.3 million restructuring charge in the three months ended June 30, 2002. The restructuring initiatives involved a workforce reduction of 53 full-time employees, primarily in the consulting services function in the United States, Europe, Canada and Latin America. All workforce reductions associated with this charge were made on or before June 30, 2002.

Operating Income

Operating income decreased 74% to $968,000 in the three months ended June 30, 2003 from $3.7 million in the three months ended June 30, 2002. The decrease in operating income results primarily from decreases in software licenses and service revenues of 15% and 20%, respectively in the three months ended June 30, 2003 compared to the three months ended June 30, 2002, offset in part by a 23% increase in maintenance services revenues and a $1.3 million decrease in operating expenses.

Operating income in our Retail Enterprise Systems business segment decreased 50% to $4.6 million in the three months ended June 30, 2003 from $9.2 million in the three months ended June 30, 2002. The decrease results primarily from lower total software and services revenues in this business segment in the three months ended June 30, 2003 compared to the three months ended June 30, 2002, together with an increase in product development costs, offset in part by higher maintenance services revenue.

We incurred an operating loss of $49,000 in our In-Store Systems business segment in the three months ended June 30, 2003 compared to operating income of $2.4 million in the three months ended June 30, 2002. The decrease results from lower product and services revenues in this business segment in the three months ended June 30, 2003 compared to the three months ended June 30, 2002, offset in part by headcount reductions in consulting services and a reduced investment in product development.

Operating income in our Collaborative Solutions business segment increased 81% to $4.0 million in the three months ended June 30, 2003 from $2.2 million in the three months ended June 30, 2002. The increase results primarily from an increase in maintenance services revenues due to a larger customer base, and a decrease in sales and marketing costs, offset in part by an increase in product development headcount to support our new CPFR initiatives and future growth of this business segment.

Gain on Sale of Office Facility

We recorded a $639,000 gain in the three months ended June 30, 2003 on the sale of an excess office facility in the United Kingdom.

Provision for Income Taxes

We recorded a provision for income taxes of $695,000, or 35% of the reported income before income taxes in the three months ended June 30, 2003 compared to a provision for income taxes of $1.5 million, or 35.5% of income before income taxes in the three months ended June 30, 2002. The provision for income taxes in the three months ended June 30, 2003 includes income tax expense in our foreign subsidiaries of $1.3 million, offset in part by an income tax benefit in the United States of $625,000. The effective income tax rate for 2003 of 35% takes into account the source of taxable income, domestically by state and internationally by country, and available income tax credits. No research and development tax credit has been claimed due to the loss incurred in the six months ended June 30, 2003.

We have reached a settlement with the Internal Revenue Service on their examination of our 1998 and 1999 federal income tax returns. Under this settlement, the Internal Revenue Service has agreed to allow the Company to take a research and development expense tax credit for most of the qualifying expenses originally reported in the 1998 and 1999 federal income tax returns. However, the Internal Revenue Service has advised that they cannot issue a refund check until they complete a subsequent audit of our 2000 and 2001 federal income tax returns. This audit is expected to take six to nine months and no material adjustments are anticipated.

Six months ended June 30, 2003 Compared to Six months ended June 30, 2002

Revenues consist of product revenues and services revenue, which represented 60% and 40%, respectively, of total revenues in the six months ended June 30, 2003 compared to 56% and 44%, respectively in the six months ended June 30, 2002. Total revenues for the six months ended June 30, 2003 were $94.2 million, a decrease of $22.5 million, or 19%, from the $116.7 million reported in the six months ended June 30, 2002.

Product Revenues

Software Licenses. Software license revenues for the six months ended June 30, 2003 decreased 39% to $23.2 million from $37.8 million in the six months ended June 30, 2002. Software license sales continue to be impacted by weak economic conditions and the disappointing results of the retail industry. In addition, we believe software license sales were negatively impacted in the six months ended June 30, 2003 by the disruption from the early phases of implementation of the CVP in first quarter 2003, the US war and continued violence in Iraq, the economic uncertainty related to the threat of future terrorist attacks and wars, and the outbreak of SARS in the Asia/Pacific region.

to deferral. This has elongated our sales cycles and impacted our ability to predict the size and timing of individual contracts. For example, we signed four large software licenses ($1.0 million or greater) during second quarter 2003 as compared to none during first quarter 2003, six in fourth quarter 2002 and one in second quarter 2002.

Economic conditions have negatively impacted the demand for our Portfolio Merchandise Management Systems and Portfolio Store Systems over the past two years and we believe there is no evidence to support a turnaround in the poor performance of the transaction systems market in the near term. We believe the next driver for growth in the transaction systems market will be sustained economic improvement and the introduction and acceptance of our Java-based In-Store System that was commercially released in June 2003, and the .Net Platform version of our Portfolio Merchandise Management Systems which is under development. Since 2001 the majority of our software license revenues have been associated with our Strategic Merchandise Management Solutions that require lower levels of services to implement and provide a quicker return on investment.

Software license revenues in the Retail Enterprise Systems business segment decreased 41% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002. In-Store Systems software license revenues decreased 76% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002. We do not expect the revenues in the In-Store Systems segment to improve until we begin to increase market share with our new Java-based In-Store System product that was commercially released in June 2003. Collaborative Solutions software license revenues decreased 19% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002.

Software license revenues in the Americas decreased 30% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002 due to decreases in software license revenues related to Retail Enterprise Systems, In-Store Systems and Collaborative Solutions applications of 36%, 54%, and 13%, respectively. Software license revenues in Europe decreased 55% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002 due to decreases in software license revenues related to Retail Enterprise Systems, In-Store Systems, and Collaborative Solutions applications of 59%, 94%, and 29%, respectively. Software license revenues in Asia/Pacific decreased 32% in the six months ended June 30, 2003 compared to the six months ended June 30, 2002 due to decreases in software license revenues related to Retail Enterprise Systems, In-Store Systems, and Collaborative Solutions applications of 6%, 99%, and 39%, respectively.

Maintenance Services. Maintenance services revenue for the six months ended June 30, 2003 increased 25% to $33.7 million from $27.0 million in the six months ended June 30, 2002 due primarily to increases in the customer base for Strategic Merchandise Management Solutions, offset in part by a decrease in maintenance services revenue from Portfolio Merchandise Management Systems due to cost saving actions by customers with heavily customized systems, bankruptcies and retail consolidations.

Service Revenues

Service revenues, which include consulting services, training revenues, and reimbursed expenses, decreased 28% in the six months ended June 30, 2003 to $37.3 million from $51.9 million in the six months ended June 30, 2002, primarily due to a decrease in demand for the implementation of and training services for Portfolio Merchandise Management Systems and Portfolio Store Systems. As a result of the economic downturn, we believe retailers have changed their buying behavior and that this has resulted in a fundamental shift in the mix of demand for the various types of products we sell from high dollar projects to lower cost point solutions. We also believe the average implementation times for our software products have declined due to increased training and expertise in our consulting organization, and as a direct result of the investments we have made over the past few years to increase the functionality, stability, scalability, integration and ease of implementation of the products in the JDA Portfolio. Furthermore, since 2001 the majority of our product demand has been associated with our Strategic Merchandise Management Solutions that require lower levels of services to implement, and it is therefore harder to manage the proper staffing levels. As a result of these changes in our business and product revenue mix, we expect service revenues to continue to decline until economic conditions improve and the demand for Portfolio Merchandise Management Systems and Portfolio Store Systems and the related implementation services returns.

Business Segment Revenues

Total revenues in our Retail Enterprise Systems business segment decreased 21% to $64.0 million in the six months ended June 30, 2003 from $80.8 million in the six months ended June 30, 2002, due to a decrease in demand across all product lines except Portfolio Space Management by Intactix. The largest decrease was in Portfolio Merchandise Management Systems that tend to be more heavily impacted during slow economic periods, as retailers are often reluctant to make substantial investments due to the slower expected return on investment. Further, there are fewer new retailers entering the market that are originating new demand versus replacement. In addition, these products typically have longer implementation time frames and our services group often performs the implementation services. As a result, the decline in software sales for these products is also having a negative impact on our consulting services revenue. The Retail Enterprise Systems business segment represented 68% of our total revenues in the six months ended June 30, 2003 compared to 69% in the six months ended June 30, 2002.

Total revenues in our In-Store Systems business segment decreased 55% to $6.5 million in the six months ended June 30, 2003 from $14.2 million in the six months ended June 30, 2002. The Portfolio Store Systems in the In-Store Systems business segment tend to be heavily impacted during slower economic periods, as the implementation of a new point-of-sale system usually requires a substantial hardware investment. We believe that market acceptance of our new Java-based In-Store System will return this segment to growth once the early adopters complete their implementations and become referenceable. The In-Store Systems business segment represented 7% of total revenues in the six months ended June 30, 2003 compared to 12% in the six months ended June 30, 2002.

Total revenues in our Collaborative Solutions business segment increased 10% to $23.7 million in the six months ended June 30, 2003 from $21.7 million in the six months ended June 30, 2002, primarily due to an increase in Portfolio Space Management by Intactix revenues from non-retail customers. The Collaborative Solutions business segment is a focus area for growth as most of our customers in this segment currently own only one JDA product. The Collaborative Solutions business segment represented 25% of total revenues in the six months ended June 30, 2003 compared to 19% in the six months ended June 30, 2002.

Geographic Revenues

Total revenues in the Americas (includes the United States, Canada and Latin America) decreased 23% to $58.9 million in the six months ended June 30, 2003 from $76.3 million in the six months ended June 30, 2002 due to a 30% decrease in software license revenues and a 38% decrease in service revenues, offset in part by an 18% increase in maintenance services revenue. We expect the Americas region to have improving software license revenues in the near term compared to prior years. We also expect service revenues in this region to continue to decline due to low demand for Portfolio Merchandise Management Systems and Portfolio Store Systems that have higher implementation requirements.

Total revenues in Europe decreased 9% to $28.3 million in the six months ended June 30, 2003 from $31.0 million in the six months ended June 30, 2002 due to a 55% decrease in software license revenues offset in part by a 42% increase in maintenance services revenue and an 8% increase in service revenues. We do not expect any significant improvement in software license or service revenues in the Europe region in the near term due to continued adverse economic conditions.

Total revenues in Asia/Pacific decreased 6% to $10.0 million in the six months ended June 30, 2003 from $10.6 million in the six months ended June 30, 2002 due to a 32% decrease in software license revenues offset in part by a 22% increase in maintenance services revenue. Service revenues for the six months ended June 30, 2003 were flat with the six months ended June 30, 2002. The SARS outbreak had an adverse effect on revenues in Asia/Pacific in the six months ended June 30, 2003. We do not expect any significant improvement in the Asia/Pacific region revenues in the near term.

Cost of Product Revenues

Cost of Software Licenses. Cost of software licenses was $423,000, or 2% of software license revenues in the six months ended June 30, 2003 compared to $1.1 million, or 3% of software license revenues in the six months

ended June 30, 2002. The decrease in cost of software licenses results from the lower volume of software products sold in the six months ended June 30, 2003 that incorporate functionality from third party software providers and require the payment of royalties.

Amortization of Acquired Software Technology. Amortization of acquired software technology was $2.2 million in the six months ended June 30, 2003 compared to $2.1 million in the six months ended June 30, 2002. The increase results from the amortization of software technology acquired in the acquisition of J•Commerce in April 2002 and Vista on April 20, 2003.

Cost of Maintenance Services. Cost of maintenance services increased 21% to $8.3 million, or 25% of maintenance services revenue, in the six months ended June 30, 2003 from $6.8 million, or 25% of maintenance services revenue, in the six months ended June 30, 2002. The increase results primarily from additional headcount to support our growing customer base, and higher incentive compensation and benefit costs. In addition, cost of maintenance services increased $178,000 in the six months ended June 30, 2003 for consulting services employees who were used to assist in client support activities.

Cost of Service Revenues

Cost of service revenues decreased 14% to $31.5 million in the six months ended June 30, 2003 from $36.7 million in the six months ended June 30, 2002. This decrease results primarily from a 21% decrease in average consulting services headcount, and a $1.1 million decrease in employee costs during the six months ended June 30, 2003 related to consulting services employees who were used to supplement new product development and quality assurance activities, and to assist with business development and client support activities under the CVP. These decreases were offset in part by higher incentive compensation and benefit costs in the six months ended June 30, 2003 compared to the six months ended June 30, 2002.

Gross Profit

Gross profit for the six months ended June 30, 2003 decreased 26% to $51.8 million, or 55% of total revenues, from $69.9 million, or 60% of total revenues in the six months ended June 30, 2002. The decrease in gross profit dollars and gross margin percentage results primarily from decreases in software license revenues and service revenues of 39% and 28%, respectively, offset in part by a 25% increase in maintenance services revenue. Software licenses and maintenance services revenue have substantially higher margins than service revenues.

Service revenue margins were 15% in the six months ended June 30, 2003, compared to 29% in the six months ended June 30, 2002. The decrease in service revenue margins is attributable to lower utilization of our consulting services personnel and higher incentive compensation and benefit costs. Despite significant headcount reductions in 2002 to counteract the decline in demand for services, our utilization rate decreased to 45% in the six months ended June 30, 2003 compared to 52% in the six months ended June 30, 2002. The lower utilization rate results primarily from the continuing weak economic conditions that have decreased the overall demand for Portfolio Merchandise Management Systems and Portfolio Store Systems and the related implementation services, the disruption caused by the roll-out of the CVP in first quarter 2003 which required significant training time for the affected service employees, and the improved integration and reduced implementation timeframes for products in the JDA Portfolio. The effect of lower utilization rates was offset in part by a $1.2 million decrease in employee costs during the six months ended June 30, 2003 related to consulting services employees who were used to supplement new product development and quality assurance activities, and to assist with business development and client support activities under the CVP. The cross-utilization of consulting services employees is expected to continue during the remainder of 2003, although at varying rates, which will cause our consulting margins to fluctuate. We expect service margins will be lower for the remainder of 2003. In addition, we are continuously reviewing our long-term staffing requirements in each region and will adjust our service headcounts downward where appropriate.

Operating Expenses

Operating expenses, excluding amortization of intangibles, relocation costs to consolidate development and client support activities, purchased in-process research and development, and restructuring, office closure costs and other charges, decreased 7% to $52.1 million, or 55% of total revenues, in the six months ended June 30, 2003, compared to $56.2 million, or 48% of total revenues in the six months ended June 30, 2002. Overall, our cost structure was lower in the six months ended June 30, 2003 compared to the six months ended June 30, 2002 due to the decreases in sales and marketing and administrative headcount that resulted from the reorganization of the Company in fourth quarter 2002 in connection with the implementation of the CVP, lower incentive compensation costs, $2.1 million lower bad debt expense, and a reduction in customer dispute charges. These savings were offset in part by higher insurance costs and our investment in training to effect the transition to the CVP and the .Net Platform.

Product Development. Product development expenses for the six months ended June 30, 2003 increased 10% to $22.8 million from $20.8 million in the six months ended June 30, 2002. Product development expense, as a percentage of product revenues, was 40% in the six months ended June 30, 2003 compared to 32% in the six months ended June 30, 2002. The increase in product development during the six months ended June 30, 2003 includes increases in average headcount, salaries, benefits, and incentive compensation costs for full-time employees involved in the ongoing development of a series of enhancements to the JDA Portfolio products based upon the .Net Platform and the development of further collaborative planning, forecasting and replenishment (“CPFR”) applications. In addition, product development expenses increased $519,000 during the six months ended June 30, 2003 for consulting services employees who were used to supplement the new product development and quality assurance activities of our internal .Net Platform developers, offset in part by lower travel, training and recruiting costs.

Sales and Marketing. Sales and marketing expenses for the six months ended June 30, 2003 decreased 14% to $17.8 million from $20.7 million in the six months ended June 30, 2002. Sales and marketing expense, as a percentage of total revenues, was 19% in the six months ended June 30, 2003 compared to 18% in the six months ended June 30, 2002. The decrease in sales and marketing expenses results primarily from a decrease in average sales and marketing headcount and lower commissions due to the decrease in software license revenues, offset in part by a $507,000 increase in costs during the six months ended June 30, 2003 for consulting services employees who assisted with business development activities under the CVP.

General and Administrative. General and administrative expenses for the six months ended June 30, 2003 decreased 21% to $11.6 million from $14.7 million in the six months ended June 30, 2002. General and administrative expense, as a percentage of total revenues, was 12% in the six months ended June 30, 2003 compared to 13% in the six months ended June 30, 2002. The decrease in general and administrative expenses results primarily from a decrease in average administrative headcount, $2.1 million lower bad debt expense, and a reduction in customer legal dispute charges, offset in part by higher insurance costs and our investment in internal IT projects.

Amortization of Intangibles. Amortization of intangibles was $1.4 million in the six months ended June 30, 2003 which is comparable to the six months ended June 30, 2002. We recorded $20,000 of additional amortization during the six months ended June 30, 2003 on intangibles recorded in the acquisition of Vista on April 30, 2003.

Relocation Costs to Consolidate Development and Client Support Activities. Approximately 150 people were offered the opportunity to relocate as part of the CVP initiative to consolidate our development and client support activities. As of June 30, 2003, a total of 36 employees have relocated and we currently anticipate that an additional 15 employees will relocate in the next three months. We have negotiated temporary retention arrangements ranging from nine months to two years with 41 employees who have chosen not to relocate in order to facilitate a smooth transition. In addition, approximately 40 employees have been hired or transferred from other departments within the Company to fill certain of the development and client support positions. We have incurred $1.7 million in relocation costs through June 30, 2003 in connection with this initiative, including $1.3 million in the six months ended June 30, 2003. We expect to incur an additional $500,000 to $600,000 in relocation costs during the next three months to complete the consolidation of development and client support activities. The relocation costs have been reported in income from continuing operations as incurred.

Purchased In-process Research and Development. We expensed $800,000 of purchased in-process research and development in the six months ended June 30, 2002 in connection with the acquisition of J•Commerce in April 2002.

Restructuring, Office Closure Costs and Other Charges. We recorded a $1.3 million restructuring charge in the six months ended June 30, 2002. The restructuring initiatives involved a workforce reduction of 53 full-time employees, primarily in the consulting services function in the United States, Europe, Canada and Latin America. All workforce reductions associated with this charge were made on or before June 30, 2002.

Operating Income

We incurred an operating loss of $3.0 million in the six months ended June 30, 2003 compared to operating income of $10.2 million in the six months ended June 30, 2002. The decrease in operating income results primarily from decreases in software licenses and service revenues of 39% and 28%, respectively in the six months ended June 30, 2002 compared to the six months ended June 30, 2002, offset in part by a 25% increase in maintenance services revenues, a $5.2 million decrease in cost of service revenues, and a $4.9 million decrease in operating expenses.

Operating income in our Retail Enterprise Systems business segment decreased 67% to $6.3 million in the six months ended June 30, 2003 from $18.9 million in the six months ended June 30, 2002. The decrease results primarily from lower total software and services revenues in this business segment in the six months ended June 30, 2003 compared to the six months ended June 30, 2002, together with an increase in product development costs, offset in part by higher maintenance services revenue and a decrease in sales and marketing costs.

We incurred an operating loss of $456,000 in our In-Store Systems business segment in the six months ended June 30, 2003 compared to operating income of $4.2 million in the six months ended June 30, 2002. The decrease results from lower product and services revenues in this business segment in the six months ended June 30, 2003 compared to the six months ended June 30, 2002, offset in part by headcount reductions in consulting services and a reduced investment in product development.

Operating income in our Collaborative Solutions business segment increased 1% to $5.4 million in the six months ended June 30, 2003 from $5.3 million in the six months ended June 30, 2002. The increase results primarily from an increase in maintenance services revenues due to an increased customer base, and a decrease in sales and marketing costs, offset in part by modestly lower software revenues and lower services revenues, and an increase in product development headcount to support our new CPFR initiatives and future growth of this business segment.

Gain on Sale of Office Facility

We recorded a $639,000 gain in the six months ended June 30, 2003 on the sale of an excess office facility in the United Kingdom.

Provision for Income Taxes

We recorded an income tax benefit of $510,000, or 35% of the reported loss before income taxes in the six months ended June 30, 2003 compared to a provision for income taxes of $4.0 million, or 35.5% of income before income taxes in the six months ended June 30, 2002. The income tax benefit in the six months ended June 30, 2003 includes an income tax benefit in the United States of $2.9 million, offset in part by income tax expense in our foreign subsidiaries of $2.4 million. The effective income tax rate for 2003 of 35% takes into account the source of taxable income, domestically by state and internationally by country, and available income tax credits. No research and development tax credit has been claimed due to the loss incurred in the six months ended June 30, 2003.

a refund check until they complete a subsequent audit of our 2000 and 2001 federal income tax returns. This audit is expected to take six to nine months and no material adjustments are anticipated.

Liquidity and Capital Resources

We had working capital of $119.7 million at June 30, 2003 compared with $121.0 million at December 31, 2002. Cash and marketable securities at June 30, 2003 were $114.3 million, an increase of $12.4 million over the $101.9 million reported at December 31, 2001. Working capital increased in the six months ended June 30, 2003 primarily as a result of an increase in cash and marketable securities and a reduction in accrued expenses and other liabilities, offset in part by a decrease in accounts receivable balances. Cash and marketable securities balances increased in the six months ended June 30, 2003 primarily as a result of cash provided by operating activities and the cash received from the issuance of common stock under our stock option and employee stock purchase plans.

Operating activities provided cash of $18.0 million in the six months ended June 30, 2003 and $17.4 million in the six months ended June 30, 2002. The increase in cash provided from operating activities in the six months ended June 30, 2003 compared to the six months ended June 30, 2002 results primarily from a $13.8 million decrease in accounts receivable in the six months ended June 30, 2003 compared to a $5.3 million increase in accounts receivable in the six months ended June 30, 2002, a $2.4 million decrease in income tax receivable in the six months ended June 30, 2003 compared to a $4.2 million increase in the six months ended June 30, 2002, and a $3.2 million lower increase in prepaid expenses and other liabilities. These sources of operating cash were partially offset by a $6.2 million smaller increase in deferred revenue in the six months ended June 30, 2003 compared to the six months ended June 30, 2002, a $6.7 million decrease in the income tax benefits from the exercise of stock options and shares purchased under the employee stock purchase plan, a $1.8 million decrease in deferred income taxes in the six months ended June 30, 2003 compared to a $105,000 increase in the six months ended June 30, 2002, and a $2.1 million lower provision for doubtful accounts. Our net receivables were $32.9 million, or 56 days sales outstanding (“DSOs”) at June 30, 2003 compared to $47.1 million, or 79 DSOs at December 31, 2002, and $64.0 million, or 100 DSOs at June 30, 2002. Collection of receivables continues to be an area of focus during these tentative economic times. DSOs may fluctuate significantly on a quarterly basis due to a number of factors including seasonality, shifts in customer buying patterns, lengthened contractual payment terms in response to competitive pressures, the underlying mix of products and services, and the geographic concentration of revenues.

Investing activities utilized cash of $6.3 million in the six months ended June 30, 2003 and $25.2 million in the six months ended June 30, 2002. Cash utilized by investing activities in the six months ended June 30, 2003 results primarily from $5.6 million in capital expenditures and $4.0 million in cash expended to acquire Vista, offset in part by the net maturity of $2.0 million of marketable securities and $1.7 million in proceeds from the disposal of property and equipment, primarily from the sale of an excess office facility in the United Kingdom. Cash utilized by investing activities in the six months ended June 30, 2002 includes the net purchases of $13.5 million of marketable securities, the payment of $4.2 million in direct costs related to the acquisition of E3, $4.2 million in cash expended to acquire J•Commerce, and $3.7 million in capital expenditures.

Financing activities provided cash of $1.6 million in the six months ended June 30, 2003 and $14.1 million in the six months ended June 30, 2002. The activity in both periods includes proceeds from the issuance of common stock under our stock option and employee stock purchase plans. In addition, the activity for the six months ended June 30, 2003 includes the repurchase of 75,000 shares of our outstanding stock for $757,000.

Changes in the currency exchange rates of our foreign operations had the effect of increasing cash by $1.2 million in the six months ended June 30, 2003, which is comparable to the six months ended June 30, 2002. We currently have no derivative instruments and have not engaged in any material foreign currency hedging transactions.

We believe there are opportunities to grow our business through the acquisition of complementary and synergistic companies, products and technologies. We look for acquisitions that can be readily integrated and accretive to earnings, although we may pursue smaller non-accretive acquisitions that will shorten our time to market with new technologies. We believe the general size of cash acquisitions we would currently consider to be in the $5 million to $30 million range. Any material acquisition could result in a decrease to our working capital depending on the amount, timing and nature of the consideration to be paid. In addition, any material acquisitions of complementary or synergistic companies, products or technologies could require that we obtain additional equity financing. There can be no assurance that such additional financing will be available or that, if available, such

financing will be obtained on terms favorable to us and would not result in additional dilution to our stockholders.

On April 30, 2003 we acquired substantially all the intellectual property of Vista Software Solutions, Inc. (“Vista”), and Vista’s active customer agreements for a total cost of $4.6 million, which includes the purchase price of $3.8 million plus $780,000 in direct costs of the acquisition. Vista is a provider of collaborative business-to-business software solutions that enable retailers and consumer goods manufacturers to more efficiently synchronize and integrate data, including product descriptions, product images, pricing and promotion information throughout their supply and demand chains. Vista’s solutions also enable consumer goods manufacturers to manage trade promotions, minimize trade deductions costs and more accurately forecast product demand. With this acquisition, we have expanded the JDA Portfolio with complementary software products that leverage the Microsoft .Net platform and address the critical need for server-to-server data synchronization in Internet-based collaborative commerce. The acquisition was accounted for as a purchase, and accordingly, the operating results of Vista have been included in our consolidated financial statements from the date of acquisition. In connection with the Vista acquisition, we added 13 new employees, primarily in product development, and recorded $2.3 million of goodwill, $1.1 million in software technology, and $1.2 million for customer lists and other intangibles. Vista contributed $325,000 in total revenues during second quarter 2003, including $100,000 in software license revenues and $197,000 in maintenance services revenue. Pro forma operating results have not been presented as the acquisition is not material to our consolidated financial statements.

We believe that our cash and cash equivalents, investments in marketable securities, and funds generated from operations will provide adequate liquidity to meet our normal operating requirements for at least the next twelve months.

Factors That May Affect Our Future Results or The Market Price of Our Stock

We operate in a dynamic and rapidly changing environment that involves numerous risks and uncertainties. The following section describes some, but not all, of these risks and uncertainties that we believe may adversely affect our business, financial condition or results of operations. This section should be read in conjunction with the Unaudited Consolidated Financial Statements and Notes thereto, and Management’s Discussion and Analysis of Financial Condition and Results of Operations as of June 30, 2003 and for the six months then ended contained elsewhere in this Form 10-Q.

Regional And/Or Global Changes in Economic, Political And Market Conditions Could Cause Decreases in Demand For Our Software And Related Services Which Could Negatively Affect Our Revenue And Operating Results And The Market Price of Our Stock.

Our revenue and profitability depend on the overall demand for our software and related services. A regional and/or global change in the economy and financial markets could result in delay or cancellation of customer purchases. We and most of our competitors recently announced that current economic conditions have negatively impacted financial results. In addition, recent developments associated with terrorist attacks on United States’ interests, the US war and continued violence in Iraq, and the Severe Acute Respiratory Syndrome (“SARS”) have

resulted in economic, political and other uncertainties, which could further adversely affect our revenue growth and operating results. If demand for our software and related services decrease, our revenues would decrease and our operating results would be adversely affected. Our inability to license software products to new customers may cause our stock price to fall.

Our Quarterly Operating Results May Fluctuate Significantly, Which Could Adversely Affect the Price of Our Stock.

Our quarterly operating results have varied and are expected to continue to vary in the future. If our quarterly operating results fail to meet management’s or analysts’ expectations, the price of our stock could decline. Many factors may cause these fluctuations, including:

• Demand for our software products and services, including the size and timing of individual contracts and our ability to recognize revenue with respect to contracts signed in the quarter, particularly with respect to our significant customers;

• Changes in the length of our sales cycle;

• Competitive pricing pressures and the competitive success or failure on significant transactions;

• Customer order deferrals resulting from the anticipation of new products, economic uncertainty, disappointing operating results by the customer, or otherwise;

• The timing of new software product and technology introductions and enhancements to our software products or those of our competitors, and market acceptance of our new software products and technology;

• Changes in our operating expenses;

• Changes in the mix of domestic and international revenues, or expansion or contraction of international operations;

• Our ability to complete fixed price consulting contracts within budget;

• Foreign currency exchange rate fluctuations;

• Operational issues resulting from corporate reorganizations (see “We May Encounter Difficulties Successfully Implementing Our Recent Corporate Reorganization”); and

• Lower-than-anticipated utilization in our consulting services group as a result of reduced levels of software sales, reduced implementation times for our products, changes in the mix of demand for our software products, or other reasons.

Our Stock Price Has Been And May Remain Volatile.

The trading price of our common stock has in the past and may in the future be subject to wide fluctuations. Examples of factors that we believe have caused fluctuations in our stock price in the recent past include the following:

• Cancelled or delayed purchasing decisions related to the September 11 terrorist attack and the uncertainty related to potential future terrorist attacks and the war with Iraq;

• The millennium change;

• Conversion to the Euro currency;

• External and internal marketing issues;

• Our announcement of our reduced visibility and increased uncertainty concerning future demand for our products;

• Increased competition;

• Elongated sales cycles;

• A limited number of reference accounts with implementations in the early years of product release;

• Certain design and stability issues in early versions of our products; and

• Lack of desired features and functionality.

In addition, fluctuations in the price of our common stock may expose us to the risk of securities class action lawsuits. Defending against such lawsuits could result in substantial costs and divert management’s attention and resources. Furthermore, any settlement or adverse determination of these lawsuits could subject us to significant liabilities.

Our Gross Margins May Vary Significantly or Decline.

Because the gross margins on product revenues (software licenses and maintenance services) are significantly greater than the gross margins on consulting services revenue, our combined gross margin has fluctuated from quarter to quarter, and it may continue to fluctuate significantly based on revenue mix. As a result of the economic downturn, we believe retailers have changed their buying behavior and that this has resulted in a fundamental shift in the mix of demand for the various types of products we sell. Demand for our Portfolio Merchandise Management Systems and Portfolio Store Systems has declined and customers now appear to be more interested in buying Strategic Merchandise Management Solutions that require lower levels of services to implement, enable lower inventory levels without reducing sales, and provide a quicker return on investment. The decline in software sales of Portfolio Merchandise Management Systems and Portfolio Store Systems is having a corollary negative impact on our service revenues as consulting services revenue typically lags the performance of software revenues by as much as one year. As a result of this change in revenue mix, we expect that our consulting services revenue will continue to decline sequentially each quarter until economic conditions improve and the demand for Portfolio Merchandise Management Systems and Portfolio Store Systems and the related implementation services returns. In addition, our gross margins on consulting services revenue vary significantly with the rates at which we utilize our consulting personnel, and as a result, our overall gross margins will be adversely affected when there is not enough work to keep our consultants busy. We may face some constraints on our ability to adjust consulting service headcount and expense to meet demand, due in part to our need to retain consulting personnel with sufficient skill sets to implement and maintain our full set of products.

We May Misjudge When Software Sales Will Be Realized.

Software license revenues in any quarter depend substantially upon contracts signed and the related shipment of software in that quarter. It is therefore difficult for us to accurately predict software license revenues. 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, and we may derive a significant portion of our quarterly software license revenues from a small number of relatively large sales. 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. Accordingly, large individual sales have sometimes occurred in quarters subsequent to when we anticipated. We expect these aspects of our business to continue. If we receive any significant cancellation or deferral of customer orders, or we are unable to conclude license negotiations by the end of a fiscal quarter, our operating results may be lower than anticipated. In addition, any weakening or uncertainty in

the economy may make it more difficult for us to predict quarterly results in the future, and could negatively impact our business, operating results and financial condition for an indefinite period of time.

We May Not Be Able to Reduce Expense Levels If Our Revenues Decline.

Our expense levels are based on our expectations of future revenues. Since software license sales are typically accompanied by a significant amount of consulting and maintenance services, the size of our services organization must be managed to meet our anticipated software license revenues. As a result, we hire and train service personnel and incur research and development costs in advance of anticipated software license revenues. If software license revenues fall short of our expectations, or if we are unable to fully utilize our service personnel, our operating results are likely to decline because a significant portion of our expenses cannot be quickly reduced to respond to any unexpected revenue shortfall.

We May Continue to Encounter Difficulties Successfully Implementing Our Recent Corporate Reorganization.

In fourth quarter 2002 we substantially reorganized our Company to improve the profitability of our operations and to implement our Customer Value Program initiative. As part of this reorganization, we terminated a significant number of personnel both domestically and internationally, reassigned certain existing personnel and added a number of new personnel. We will likely continue to encounter difficulties implementing this extensive and complex reorganization. As anticipated, our decision to reorganize the Company and implement the CVP caused initial disruptions in our sales, services and training functions that negatively impacted our revenues and operating results in first quarter 2003. Although we believe the most significant negative impact of the CVP implementation is behind us, the costs and risks associated with the widespread changes contemplated in the CVP may continue to adversely affect our operating results throughout the remainder of 2003. Potential risks include, but are not limited to: (i) the possible disruption in our operations caused by such a large and complex reorganization; (ii) the cost of disposing of redundant office facilities; and (iii) the possibility that we will not be able to successfully recruit appropriately skilled and experienced personnel to fill new positions.

We Are Dependent Upon The Retail Industry.

Historically, we have derived 80% or more of our revenues from the license of software products and the performance of related services to retail customers. Although the acquisitions of Arthur, Intactix, Zapotec, NeoVista Decision Series, E3 and Vista have expanded our product offerings to provide collaborative applications that address new vertical market opportunities with the manufacturers and wholesalers who supply our traditional retail customers, our future growth is critically dependent on increased sales to retail customers. The success of our customers is directly linked to economic conditions in the retail industry, which in turn are subject to intense competitive pressures and are affected by overall economic conditions. In addition, we believe that the licensing of certain of our software products involves a large capital expenditure, which is often accompanied by large-scale hardware purchases or other capital commitments. As a result, demand for our products and services could decline in the event of instability or potential downturns.

We believe the retail industry remains cautious with their level of investment in information technology during the current difficult economic cycle, perhaps due to poor macroeconomic conditions, and uncertainty related to the threat of future terrorist attacks and any continued violence in Iraq. We remain concerned about weak and uncertain economic conditions, consolidations and the disappointing results of retailers in certain of our geographic regions. The retail industry will be negatively impacted if weak economic conditions or fear of additional terrorists’ attacks and wars persist for an extended period of time. Weak and uncertain economic conditions have in the past, and may in the future, negatively impact our revenues, including a potential deterioration of our maintenance revenue base as customers look to reduce their costs, elongate our selling cycles, and delay, suspend or reduce the demand for our products. As a result, it is difficult in the current economic environment to predict exactly when specific software licenses will close within a six to nine month time frame. In addition, weak and uncertain economic conditions could impair our customers’ ability to pay for our products or services. Any of these factors could adversely impact our business, quarterly or annual operating results and financial condition.

We also believe that the retail industry may be consolidating, and that the industry is currently experiencing increased competition in certain geographical regions that could negatively impact the industry and our customers’ ability to pay for our products and services. Such consolidation has in the past, and may in the future, negatively impact our revenues, reduce the demand for our products and may negatively impact our business, operating results and financial condition.

There May Be An Increase in Customer Bankruptcies Due to Weak Economic Conditions.

We have in the past and may in the future be impacted by customer bankruptcies that occur in periods subsequent to the software license sale. During weak economic conditions, such as those currently being experienced in many geographic regions around the world, there is an increased risk that certain of our customers will file bankruptcy. When our customers file bankruptcy, we may be required to forego collection of pre-petition amounts owed and to repay amounts remitted to us during the 90-day preference period preceding the filing. Accounts receivable balances related to pre-petition amounts may in certain of these instances be large due to extended payment terms for software license fees, and significant billings for consulting and implementation services on large projects. The bankruptcy laws, as well as the specific circumstances of each bankruptcy, may severely limit our ability to collect pre-petition amounts, and may force us to disgorge payments made during the 90-day preference period. We also face risk from international customers that file for bankruptcy protection in foreign jurisdictions, in that the application of foreign bankruptcy laws may be more difficult to predict. Although we believe that we have sufficient reserves to cover anticipated customer bankruptcies, there can be no assurance that such reserves will be adequate, and if they are not adequate, our business, operating results and financial condition would be adversely affected.

We May Have Difficulty Attracting And Retaining Skilled Personnel.

Our success is heavily dependent upon our ability to attract, hire, train, retain and motivate skilled personnel, including sales and marketing representatives, qualified software engineers involved in ongoing product development, and consulting personnel who assist in the implementation of our products and services. The market for such individuals is competitive. For example, it may be particularly difficult to attract and retain product development personnel experienced in the Microsoft .Net platform since the .Net platform is a new and evolving technology. Given the critical roles of our sales, product development and consulting staffs, our inability to recruit successfully or any significant loss of key personnel would hurt us. A high level of employee mobility and aggressive recruiting of skilled personnel characterize the software industry. We cannot guarantee that we will be able to retain our current personnel, attract and retain other highly qualified technical and managerial personnel in the future, or be able to assimilate the employees from any acquired businesses. We will continue to adjust the size and composition of the workforce in our services organization to match the different product and geographic demand cycles. If we were unable to attract and retain the necessary technical and managerial personnel, or assimilate the employees from any acquired businesses, our business, operating results and financial condition would be adversely affected.

We Have Only Deployed Certain of Our Software Products On a Limited Basis, And Have Not Yet Deployed Some Software Products That Are Important to Our Future Growth.

Certain of our software products, including MMS Multi-Channel, Store Portal, the UNIX/Oracle version of the Portfolio Replenishment module Advanced Warehouse Replenishment by E3, the java-based point-of-sale product that we purchased from J•Commerce, and certain modules of Affinity and Intellect, have been commercially released within the last two years. Other modules of Affinity and Intellect, as well as the UNIX/Oracle version of the Portfolio Replenishment module Advanced Store Replenishment by E3, are still in beta or under development. In addition, we have only recently announced our intentions to develop or acquire a series of business-to-business e-commerce solutions, including products in furtherance of our pursuit of the market for Collaborative Solutions. The markets for these products are new and evolving, and we believe that retailers and their suppliers may be cautious in adopting web-based and other new technologies. Consequently, we cannot predict the growth rate, if any, and size of the markets for our e-commerce products or that these markets will continue to develop. Potential and existing customers may find it difficult, or be unable, to successfully implement our e-commerce products, or may not purchase our products for a variety of reasons, including their inability or unwillingness to deploy sufficient internal personnel and computing resources for a successful implementation. In

addition, we must overcome significant obstacles to successfully market our newer products, including limited experience of our sales and consulting personnel. If the markets for our newer products fail to develop, develop more slowly or differently than expected or become saturated with competitors, or if our products are not accepted in the marketplace or are technically flawed, our business, operating results and financial condition will decline.

We Are Investing Heavily in Re-Writing Many of Our Products For The Microsoft ..Net Platform.

We currently plan to begin the migration of PMM, as well as starting to re-write the Portfolio Replenishment by E3 modules and Portfolio Planning by Arthur using the Microsoft .Net technology platform (“.Net Platform”) during 2003. Our goal is to begin delivering applications on the .Net Platform in mid-2004, starting with Portfolio Replenishment by E3, Portfolio Planning by Arthur, and certain of our Intellect applications. We also plan to develop new products as well as shared code components using the .Net Platform. The risks of our commitment to the .Net Platform include, but are not limited to, the following:

• The possibility that prospective customers will refrain from purchasing the current versions of products to be re-written because they are waiting for the .Net Platform versions;

• The possibility that our .Net Platform beta customers will not become favorable reference sites;

• Adequate scalability of the .Net Platform for our largest customers;

• The ability of our development staff to learn how to efficiently and effectively develop products using the .Net Platform;

• Our ability to transition our customer base onto the .Net Platform when it is available;

• Microsoft’s ability to achieve market acceptance of the .Net platform; and

• Microsoft’s continued commitment to enhancing and marketing the .Net platform.

Despite efforts to mitigate the risks of the .Net Platform project, there can be no assurances that our efforts to re-write many of our current products and to develop new products using the .Net Platform will be successful. If the ..Net Platform project is not successful, it likely will have a material adverse effect on our business, operating results and financial condition. Moreover, we cannot assure you that, even if we successfully re-write our products on the ..Net Platform, our re-written products will achieve market acceptance.

We May Introduce New Lines of Business Where We Are Less Experienced.

We may introduce new lines of business that are outside our traditional focus on software licenses and related maintenance and implementation services. Introducing new lines of business involves a number of uncertainties, including a lack of internal resources and expertise to operate and grow such new lines of business, immature internal processes and controls, inexperience predicting revenues and expenses for the new lines of business, and the possibility that such new lines of business will divert management attention and resources from our traditional business. The inability of management to effectively develop and operate these new lines of business could have a material adverse effect on our business, operating results and financial condition. Moreover, we may not be able gain acceptance of any new lines of business in our markets, penetrate new markets successfully, or obtain the anticipated or desired benefits of such new lines of business.

There Are Many Risks Associated with International Operations.

Our international revenues represented 46% of total revenues in the six months ended June 30, 2003 as compared to 43% in the six months ended June 30, 2002 and 43% for the year ended December 31, 2002. If our international operations grow, we must recruit and hire a number of new consulting, sales and marketing and support personnel in the countries in which we have or will establish offices. Our entry into new international markets typically requires the establishment of new marketing and distribution channels as well as the development and subsequent support of localized versions of our software. International introductions of our products often require a

significant investment in advance of anticipated future revenues. The opening of our new offices typically results in initial recruiting and training expenses and reduced labor efficiencies associated with the introduction of products to a new market. If we are less successful in a new market than we expect, we may not be able to realize an adequate return on our initial investment and our operating results could suffer. We cannot guarantee that the countries in which we operate will have a sufficient pool of qualified personnel from which to hire, that we will be successful at hiring, training or retaining such personnel, or that we can expand or contract our international operations in a timely, cost effective manner.

Our international business operations are subject to risks associated with international activities, including:

• Currency fluctuations;

• Higher operating costs due to local laws or regulations;

• Unexpected changes in employment and other regulatory requirements;

• Tariffs and other trade barriers;

• Costs and risks of localizing products for foreign countries;

• Longer accounts receivable payment cycles in certain countries;

• Potentially negative tax consequences;

• Difficulties in staffing and managing geographically disparate operations;

• Greater difficulty in safeguarding intellectual property, licensing and other trade restrictions;

• Repatriation of earnings;

• The burdens of complying with a wide variety of foreign laws;

• Anti-American sentiment due to the war with Iraq, and other American policies that may be unpopular in certain regions;

• The effects of regional and global infectious diseases such as SARS; and

• General economic conditions in international markets.

Consulting services in support of certain international software licenses typically have lower gross margins than those achieved domestically due to generally lower billing rates and/or higher costs in certain of our international markets. Accordingly, any significant growth in our international operations may result in declines in gross margins on consulting services. 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. As we continue to expand our international operations, exposures to gains and losses on foreign currency transactions may increase. We may choose to limit such exposure by entering into forward foreign currency exchange contracts or engaging in similar hedging strategies. We cannot guarantee that any currency exchange strategy would be successful in avoiding exchange-related losses. In addition, revenues earned in various countries where we do business may be subject to taxation by more than one jurisdiction, which would reduce our earnings.

We May Face Difficulties In Our Highly Competitive Markets, Particularly if The Current Weak Economic Conditions Persist.

The markets for our software products are highly competitive. However, we believe the number of significant competitors in many of our application markets has diminished over the past five years. We believe the

principal competitive factors in our markets are feature and functionality, product reputation and reference accounts, retail and supply chain industry expertise, total solution cost and quality of customer support. We believe that pricing pressure has increased in response to the economic downturn, which could cause us to offer more significant discounts, or in some cases to lose potential business to competitors willing to offer what we believe to be overly aggressive discounts. We encounter competitive products from a different set of vendors in each of our primary product categories.

Our Retail Enterprise Systems compete primarily with internally developed systems and other third-party developers such as Aldata Solutions, Alphameric PLC (formerly Compass Software Group PLC), Marketmax, Inc., Micro Strategies Incorporated, Evant, Inc. (formerly Nonstop Solutions), NSB Retail Systems PLC, Retek, Inc., SAP AG, and SVI Holdings, Inc. In addition, new competitors may enter our markets and offer merchandise management systems that target the retail industry.

The competition for our In-Store Systems is more fragmented than the competition for our Retail Enterprise Systems. We compete primarily with small point-of-sale focused companies such as CRS Business Computers, Datavantage, Inc., 360 Commerce, Tomax Technologies and Triversity, Inc. We also compete with other broad solution set providers such as NSB Retail Systems PLC and Retek, Inc.

Our current Collaborative Solutions compete primarily with products from Marketmax, Inc., Evant Inc. (formerly Nonstop Solutions), AC Nielsen Corporation, i2 Technologies, Manugistics Group, Inc., Information Resources, Inc., and Synchra Systems.

In the market for consulting services, we have pursued a strategy of forming informal working relationships with leading retail systems integrators such as Cap Gemini Ernst & Young, Kurt Salmon Associates and IBM Consulting Services (formerly PriceWaterhouseCoopers). These integrators, as well as independent consulting firms such as Accenture, IBM Global Services, AIG Netplex, CFT Consulting, Lakewest Consulting, SPL and ID Applications, also represent competition to our consulting services group. Moreover, because many of these consulting firms are involved in advising our prospective customers in the software selection process, they may successfully encourage a prospective customer to select software from a software company with whom they have a relationship. Examples of such relationships between consulting firms and software companies include the relationships between Retek, Inc. and Accenture, and between Retek, Inc. and IBM Global Services.

As we continue to develop or acquire e-commerce products and expand our business in the Collaborative Solutions area, we expect to face potential competition from business-to-business e-commerce application providers, including Ariba, Commerce One, Commercialware, i2 Technologies, Manugistics Group, Inc., Microsoft, Inc., Retek, Inc., SAP AG, Synchra Systems, Ecometry Corporation, and others. A few of our existing competitors, as well as a number of potential new competitors, have significantly greater financial, technical, marketing and other resources than we do, which could provide them with a significant competitive advantage over us. We cannot guarantee that we will be able to compete successfully against our current or future competitors, or that competition will not have a material adverse effect on our business, operating results and financial condition.

It May Be Difficult to Identify, Adopt And Develop Product Architecture That is Compatible With Emerging Industry Standards.

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 implement into our products advanced technology such as our current .Net effort. However, if we fail in our product development efforts to accurately address in a timely manner, evolving industry standards, new technology advancements or important third-party interfaces or product architectures, sales of our products and services will 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 Have Difficulty Implementing Our Products.

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 of significant risks over which we have little or no control. Although average implementation times have recently declined, we believe the implementation of the UNIX/Oracle versions of our products can be longer and more complicated than our other applications as they typically (i) appeal to larger retailers who have multiple divisions requiring multiple implementation projects, (ii) require the execution of implementation procedures in multiple layers of software, (iii) offer a retailer more deployment options and other configuration choices, and (iv) may involve third party integrators to change business processes concurrent with the implementation of the software. Delays in the implementations of any of our software products, whether by our business partners or us, may result in client dissatisfaction, disputes with our customers, or damage to our reputation. Significant problems implementing our software therefore, can cause delays or prevent us from collecting license fees for our software and can damage our ability to get new business.

Our Fixed-Price Service Contracts May Result In Losses.

We offer a combination of software products, consulting and maintenance services to our customers. Typically, we enter into service agreements with our customers that provide for consulting services on a “time and expenses” basis. Certain clients have asked for, and we have from time to time entered into, fixed-price service contracts, which link services payments, and occasionally software payments, to implementation milestones. We believe fixed-price service contracts may increasingly be offered by our competitors to differentiate their product and service offerings. As a result, we may need to enter into more fixed-price contracts in the future. If we are unable to meet our contractual obligations under fixed-price contracts within our estimated cost structure, our operating results could suffer.

Our Success Depends Upon Our Proprietary Technology.

Our success and competitive position is dependent in part upon our ability to develop and maintain the proprietary aspect of our technology. The reverse engineering, unauthorized copying, or other misappropriation of our technology could enable third parties to benefit from our technology without paying for it.

We rely on a combination of trademark, trade secret, copyright law and contractual restrictions to protect the proprietary aspects of our technology. We seek to protect the source code to our software, documentation and other written materials under trade secret and copyright laws. To date, we have not protected our technology with issued patents. Effective copyright and trade secret protection may be unavailable or limited in certain foreign countries. We license our software products under signed license agreements that impose restrictions on the licensee’s ability to utilize the software and do not permit the re-sale, sublicense or other transfer of the source code. Finally, we seek to avoid disclosure of our intellectual property by requiring employees and independent consultants to execute confidentiality agreements with us and by restricting access to our source code.

There has been a substantial amount of litigation in the software and Internet industries regarding intellectual property rights. It is possible that in the future third parties may claim that our current or potential future software solutions or we infringe on their intellectual property. We expect that software product developers and providers of e-commerce products will increasingly be subject to infringement claims as the number of products and competitors in our industry segment grows and the functionality of products in different industry segments overlap. Moreover, as software patents become more common, the likelihood increases that a patent holder will bring an infringement action against us, or against our customers, to whom we have indemnification obligations. In addition, we may find it necessary to initiate claims or litigation against third parties for infringement of our proprietary rights or to protect our trade secrets. Since we now resell hardware we may also become subject to claims from third parties that the hardware, or the combination of hardware and software, infringe their intellectual property. Although we may disclaim certain intellectual property representations to our customers, these disclaimers may not be sufficient to fully protect us against such claims. We may be more vulnerable to patent claims since we do not have any patents that we can assert defensively against a patent infringement claim. Any claims, with or without merit, could be time consuming, result in costly litigation, cause product shipment delays or require us to enter into royalty

or license agreements. Royalty or licensing agreements, if required, may not be available on terms acceptable to us or at all, which could have a material adverse effect on our business, operating results and financial condition.

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. For example, we license the Uniface client/server application development technology from Compuware, Inc. for use in PMM, certain applications from Silvon Software, Inc. for use in IDEAS, IBM’s Net.commerce merchant server software for use in MMS Multi-Channel, and the Syncsort application for use in Portfolio Planning by Arthur. These 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 face delays in the releases of our software until equivalent 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 may not have been adequately protected.

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 may occasionally contain design defects or software errors that could be difficult to detect and correct. 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. In particular, it is common for complex software programs, such as our UNIX/Oracle and e-commerce software products, to contain undetected errors when first released. They 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, our clients may occasionally experience difficulties integrating our products with other hardware or software in their environment that are unrelated to defects in our products. Such defects, errors or difficulties may cause future delays in product introductions and shipments, result in increased costs and diversion of development resources, require design modifications or impair customer satisfaction with our products.

We believe that significant investments in research and development are required to remain competitive, and that speed to market is critical to our success. Our future performance will depend in large part on our ability to enhance our existing products through internal development and strategic partnering, internally develop new products which leverage both our existing customers and sales force, and strategically acquire complementary retail point and collaborative solutions that add functionality for specific business processes to an enterprise-wide system. If clients experience significant problems with implementation of our products or are otherwise dissatisfied with their functionality or performance or if they fail to achieve market acceptance for any reason, our business, operating results and financial condition would suffer.

We Are Dependent on Key Personnel.

Our performance depends in large part on the continued performance of our executive officers and other key employees, particularly the performance and services of James D. Armstrong our Chairman and Hamish N. Brewer our Chief Executive Officer. Mr. Brewer was promoted to Chief Executive Officer on August 4, 2003 having served as our President since April 2001 and as a senior officer of the Company since 1996. He succeeds Mr. Armstrong who will continue as Chairman of the Board. As Chairman, Mr. Armstrong will retain his active leadership role, focusing on strategic planning, merger and acquisition opportunities, major product decisions and key customer relationships. We do not have in place “key person” life insurance policies on any of our employees. The loss of the services of Mr. Armstrong, Mr. Brewer, or other key executive officers or employees without a successor in place, or any difficulties associated with our succession, could negatively affect our financial performance.

We May Have Difficulty Integrating Acquisitions.

We continually 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 completed the acquisition of the assets of Zapotec Software, Inc. in February 2001, the NeoVista Decision Series from Accrue Software, Inc. in June 2001, the acquisition of all the common stock of E3 in September 2001, the acquisition of certain intellectual property from J•Commerce in April 2002, and the acquisition of certain intellectual property from Vista Software Solutions, Inc. in April 2003. The E3 acquisition was our largest to date, and involved the integration of E3’s products and operations in 12 countries. On August 4, 2003, we acquired substantially all remaining intellectual property and certain other assets of Engage, Inc. The risks we commonly encounter in acquisitions include:

• We may have difficulty assimilating the operations and personnel of the acquired company;

• We may have difficulty effectively integrating the acquired technologies or products with our current products and technologies;

• Our ongoing business may be disrupted by transition and integration issues;

• We may not be able to retain key technical and managerial personnel from the acquired business;

• We may be unable to achieve the financial and strategic goals for the acquired and combined businesses;

• We may have difficulty in maintaining controls, procedures and policies during the transition and integration;

• Our relationships with partner companies or third-party providers of technology or products could be adversely affected;

• Our relationships with employees and customers could be impaired;

• Our due diligence process may fail to identify significant issues with product quality, product architecture, legal contingencies, and product development, among other things;

• We may be subject to as a successor, certain liabilities of our acquisition targets; and

• We may be required to sustain significant exit charges if products acquired in business combinations are unsuccessful.

It May Become Increasingly Expensive to Obtain And Maintain Liability Insurance at Current Levels.

We contract for insurance to cover a variety of potential risks and liabilities. In the current market, insurance coverage is becoming more restrictive and expensive, and when certain insurance coverage is offered, the deductible for which we are responsible is larger. In light of these circumstances, it may become more difficult to maintain insurance coverage at historical levels, or if such coverage is available, the cost to obtain or maintain it may increase substantially. This may result in our being forced to bear the burden of an increased portion of risks for which we have traditionally been covered by insurance, which could negatively impact the Company’s results of operations.

Item 3: Quantitative and Qualitative Disclosures About Market Risk

We are exposed to certain market risks in the ordinary course of our business. These risks result primarily from changes in foreign currency exchange rates and interest rates. In addition, our international operations are subject to risks related to differing economic conditions, changes in political climate, differing tax structures, and other regulations and restrictions.

Foreign currency exchange rates. Our international operations expose us to foreign currency exchange rate changes that could impact translations of foreign denominated assets and liabilities into U.S. dollars and future earnings and cash flows from transactions denominated in different currencies. International revenues represented 46% of our total revenues in the six months ended June 30, 2002, as compared with 43% in the six months ended June 30, 2002 and 43% in the year ended December 31, 2002. In addition, the identifiable net assets of our foreign operations totaled 21% of consolidated net assets at June 30, 2003 as compared to 20% of consolidated assets at December 31, 2002. Our exposure to currency exchange rate changes is diversified due to the number of different countries in which we conduct business. We operate outside the United States primarily through wholly owned subsidiaries in Europe, Asia/Pacific, Canada and Latin America. We have determined that the functional currency of each of our foreign subsidiaries is the local currency and as such, foreign currency translation adjustments are recorded as a separate component of stockholders’ equity. Changes in the currency exchange rates of our foreign subsidiaries resulted in our reporting unrealized foreign currency exchange gain of $720,000 million in the six months ended June 30, 2003 compared to a foreign currency exchange gain of $2.3 million in the six months ended June 30, 2002. We did not engage in any material foreign currency hedging transactions during 2002 or the six months ended June 30, 2003. Foreign currency gains and losses will continue to result from fluctuations in the value of the currencies in which we conduct operations as compared to the U.S. Dollar, and future operating results will be affected to some extent by gains and losses from foreign currency exposure. We prepared sensitivity analyses of our exposures from foreign net working capital as of June 30, 2003, to assess the impact of hypothetical changes in foreign currency rates. Based upon the results of these analyses, a 10% adverse change in all foreign currency rates from the June 30, 2003 rates would result in a currency translation loss of $1.6 million before tax.

Interest rates. We invest our cash in a variety of financial instruments, including bank time deposits, and variable and fixed rate obligations of the U.S. Government and its agencies, states, municipalities, commercial paper and corporate bonds. These investments are denominated in U.S. dollars. We classify all of our investments as available-for-sale in accordance with Statement of Financial Accounting Standards No. 115, “Accounting for Certain Investments in Debt and Equity Securities.” Cash balances in foreign currencies overseas are operating balances and are invested in short-term deposits of the local operating bank. Interest income earned on our investments is reflected in our financial statements under the caption “Other income, net.” Investments in both fixed rate and floating rate interest earning instruments carry a degree of interest rate risk. Fixed rate securities may have their fair market value adversely impacted due to a rise in interest rates, while floating rate securities may produce less income than expected if interest rates fall. Due to these factors, our future investment income may fall short of expectations due to changes in interest rates, or we may suffer losses in principal if forced to sell securities that have suffered a decline in market value due to a change in interest rates. We hold our investment securities for purposes other than trading. The fair value of securities held at June 30, 2003 was $28.7 million, which is approximately the same as amortized cost, with interest rates generally ranging between 1% and 3%.

Item 4: Controls and Procedures

Evaluation of Disclosure Controls and Procedures. Under the supervision and with the participation of our management, including our principal executive officer and principal financial and accounting officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rule 13a-14(c) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as of the end of the period covered by this quarterly report (the “Evaluation Date”). Based on their evaluation, our principal executive officer and principal financial and accounting officer have concluded that our disclosure controls and procedures are effective, but also concluded that there are certain weaknesses in our Information Technology area (“IT”), including access security and change control. We have dedicated resources to correcting these issues and are in the process of implementing the necessary corrections. These weaknesses did not have a material impact on the accuracy of our financial statements.

Changes in Internal Control Over Financial Reporting. Other than the steps we have taken, or are in the process of taking, to correct certain weaknesses in our IT area with respect to access security and change control, there have been no significant changes in our internal controls over financial reporting, or to our knowledge, in other factors that could significantly affect these controls subsequent to the Evaluation Date, including corrective actions with regard to significant deficiencies and material weaknesses.

PART II. OTHER INFORMATION

Item 1. Legal Proceedings

We are involved in legal proceedings and claims arising in the ordinary course of business. Although there can be no assurance, management does not believe that the disposition of these matters will have a material adverse effect on our business, financial position, results of operations or cash flows.

Item 2. Changes in Securities and Use of Proceeds

Not applicable

Item 3. Defaults Upon Senior Securities

Not applicable

Item 4. Submission of Matters to a Vote of Security Holders

Our 2003 Annual Meeting of Stockholders was held on May 22, 2003 at our World Headquarters at 14400 North 87^th Street, Scottsdale, Arizona 85260. Three proposals were voted on at the Annual Meeting and the results of voting are as follows:

Proposal No. 1: To elect two Class I Directors to serve a three-year term on our Board of Directors. The Class I Director nominees were J. Michael Gullard and William C. Keiper. Mr. Gullard received the following votes: For – 25,602,554; Withheld – 1,193,128. Mr. Keiper received the following votes: For – 25,602,418; Withheld – 1,193,264. The terms of Douglas G. Marlin and Jock Patton, our Class II Directors, and James D. Armstrong, our Class III Director, continued after the Annual Meeting of Stockholders.

Proposal No. 2: To approve an amendment to the Company’s 1996 Stock Option Plan to increase the number of shares of Common Stock reserved for issuance thereunder from 7,000,000 to 8,200,000. Proposal No. 2 received the following votes: For – 20,395,401; Against – 5,500,909; Abstain – 899,372.

Proposal No. 3: To ratify the appointment of Deloitte & Touche LLP as the Company’s independent public accountants for the year ending December 31, 2003. Proposal No. 3 received the following votes: For – 26,296,649; Against – 494,967; Abstain – 4,066.

Item 5. Other Information

Not applicable

Item 6. Exhibits and Reports on Form 8-K:

(a) Exhibits: See Exhibit Index

(b) Reports on Form 8-K

We filed a Form 8-K dated April 2, 2003 with the Securities and Exchange Commission on April 24, 2003 to furnish copies of our April 2, 2003 press release announcing preliminary financial results for the quarter ended March 31, 2003, our April 21, 2003 press release announcing final financial results for the quarter ended June 30, 2002, and the transcript of our First Quarter 2003 Earnings Release Conference Call. In addition, the Form 8-K included a discussion of the non-GAAP measure of earnings (loss) per share provided in the April 21, 2003 press release.

We filed a Form 8-K dated July 21, 2003 with the Securities and Exchange Commission on July 21, 2003 to furnish a copy of our July 21, 2003 press release announcing financial results for the quarter

ended June 30, 2003. In addition, the Form 8-K included a discussion of the non-GAAP measure of earnings (loss) per share provided in the July 21, 2003 press release.

In accordance with the procedural guidance in SEC Release No. 33-8216, the information provided in each of these reports on Form 8-K and the Exhibits attached thereto was furnished under “Item 9. Regulation FD Disclosure” rather than under “Item 12. Disclosure of Results of Operations and Financial Condition.” The information provided in each of these reports on Form 8-K and the Exhibits attached thereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section, nor shall these reports be deemed incorporated by reference in any filing under the Securities Act of 1933, except as expressly set forth by specific reference in such filing.

We filed a Form 8-K dated August 4, 2003 with the Securities and Exchange Commission on August 5, 2003 to announce that Hamish N. Brewer, our President since April 2001 and as a senior officer of the Company since 1996, has been promoted to Chief Executive Officer. He succeeds James D. Armstrong who will continue as Chairman of the Board. As Chairman, Mr. Armstrong will retain his active leadership role, focusing on strategic planning, merger and acquisition opportunities, major product direction and key customer relationships.

JDA SOFTWARE GROUP, INC.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


		JDA SOFTWARE GROUP, INC.

Dated: August 13, 2003	By:	/s/ Kristen L. Magnuson

		Kristen L. Magnuson Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

EXHIBIT INDEX


Exhibit #		Description of Document

2.1**	—	Asset Purchase Agreement dated as of June 4, 1998, by and among JDA Software Group, Inc., JDA Software, Inc. and Comshare, Incorporated.

2.2##	—	Asset Purchase Agreement dated as of February 24, 2000, by and among JDA Software Group, Inc., Pricer AB, and Intactix International, Inc.

2.3###	—	Agreement and Plan of Reorganization dated as of September 7, 2001, by and among JDA Software Group, Inc., E3 Acquisition Corp., E3 Corporation and certain shareholders of E3 Corporation.

3.1####	—	Third Restated Certificate of Incorporation of the Company together with Certificate of Amendment dated July 23, 2002.

3.2***	—	First Amended and Restated Bylaws.

4.1*	—	Specimen Common Stock certificate.

4.2*(1)	—	Stock Redemption Agreement among the Company, James D. Armstrong and Frederick M. Pakis dated March 30, 1995.

10.1*(1)	—	Form of Indemnification Agreement.

10.2*(1)	—	1995 Stock Option Plan, as amended, and form of agreement thereunder.

10.3¨¨ (1)	—	1996 Stock Option Plan, as amended.

10.4*(1)	—	1996 Outside Directors Stock Option Plan and forms of agreement thereunder.

10.5 (1)####	—	Executive Employment Agreement between James D. Armstrong and JDA Software Group, Inc. dated July 23, 2002.

10.6**** (1)	—	Executive Employment Agreement between Hamish N. Brewer and JDA Software Group, Inc. dated January 22, 2003.

10.7 (1)####	—	Executive Employment Agreement between Kristen L. Magnuson and JDA Software Group, Inc. dated July 23, 2002.

10.8#(1)	—	1998 Nonstatutory Stock Option Plan.

10.9#(1)	—	1998 Employee Stock Purchase Plan.

10.10†	—	1999 Employee Stock Purchase Plan.

10.11	—	Lease Agreement between Opus West Corporation and JDA Software Group, Inc. dated April 30, 1998, together with First Amendment dated June 30, 1998, Second Amendment dated November 23, 1998, revised and restated Third Amendment dated October 20, 1999, Fourth Amendment dated May 30, 2001, Fifth Amendment dated May 31, 2001, Sixth Amendment dated August 2001, Seventh Amendment dated June 30 2003, and Letter Agreement dated June 30, 2003.

10.12**	—	Software License Agreement dated as of June 4, 1998 by and between Comshare, Incorporated and JDA Software, Inc.

10.14¨¨¨¨(2)	—	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. Two dated September 28, 2001.

10.15*(1)	—	JDA Software, Inc. 401(k) Profit Sharing Plan, adopted as amended effective January 1, 1995.

10.17***(1)	—	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.

10.18††(1)	—	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 From of Right Certificate, and as Exhibit C the Summary of Terms and Rights Agreement).


Exhibit #		Description of Document

10.19†††(1)	—	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.

10.20¨(1)(3)	—	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.

10.21¨ (1)(3)	—	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.

10.22¨ (1) (4)	—	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. 1995 Stock Option Plan

10.23¨(1)(5)	—	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

10.24¨ (1)(6)	—	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

10.25¨¨¨	—	Secured Loan Agreement between JDA Software Group, Inc. and Silvon Software, Inc. dated May 8, 2001, together with Secured Promissory Note and Security Agreement.

31.1	—	Rule 13a-15(e)/15d-15(e) Certification of Chief Executive Officer

31.2	—	Rule 13a-15(e)/15d-15(e) Certification of Chief Financial Officer

32.1	—	Section 1350 Certification of Chief Executive Officer

32.2	—	Section 1350 Certification of Chief Financial Officer

*		Incorporated by reference to the Company’s Registration Statement on Form S-1 (File No. 333-748), declared effective on March 14, 1996.

**		Incorporated by reference to the Company’s Current Report on Form 8-K dated June 4, 1998, as filed on June 19, 1998.

***		Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1998, as filed on August 14, 1998.

****		Incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2002, as filed on March 19, 2003.

		† Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1999, as filed on August 19, 1999.

		†† Incorporated by reference to the Company’s Current Report on Form 8-K dated October 2, 1998, as filed on October 28, 1998.

		††† Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1998, as filed on November 13, 1998.

#		Incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 1998, as filed on March 31, 1998.

##		Incorporated by reference to the Company’s Current Report on Form 8-K dated February 24, 2000, as filed on March 1, 2000.

###		Incorporated by reference to the Company’s Current Report on Form 8-K dated September 7, 2001, as filed on September 21, 2001.

####		Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2002, as filed on November 12, 2002.

¨		Incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 1999, as filed on March 16, 2000.

¨¨		Incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2000, as filed on April 2, 2001.

¨¨¨ Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2001, as filed on August 14, 2001.

¨¨¨¨ Incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001, as filed on March 29, 2002.

(1) Management contracts or compensatory plans or arrangements covering executive officers or directors of the Company.

(2) Confidential treatment has been granted as to part of this exhibit.

(3) Applies to James D. Armstrong.

(4) Applies to Hamish N. Brewer and Gregory L. Morrison.

(5) Applies to Hamish N. Brewer, Peter J. Charness, Scott D. Hines, Gregory L. Morrison and David J. Tidmarsh.

(6) Applies to Senior Executive Officers with the exception of James D. Armstrong and Kristen L. Magnuson.

51 EX-10.11 3 p68102exv10w11.txt EXHIBIT 10.11 EXHIBIT 10.11 03/25/98 JBC 04/02/98 JBC 04/17/98 JBC 04/20/98 JBC 04/26/98 JBC OFFICE LEASE SCOTTSDALE NORTHSIGHT THIS INDENTURE OF LEASE (the "Lease"), dated as of the 30th day of April, 1998, by and between OPUS WEST CORPORATION, a Minnesota corporation, owner of the Office Complex (as hereinafter defined), hereinafter referred to as "Lessor", and JDA SOFTWARE GROUP, INC., a Delaware corporation, hereinafter referred to as "Lessee". WITNESSETH: That Lessor, in consideration of the rents and covenants hereinafter set forth, does hereby lease and let unto Lessee, and Lessee does hereby hire and take from Lessor, that certain space shown and designated on the site plan attached hereto and made a part hereof as Exhibit A, which space shall consist of not less than 95,000 rentable square feet (the final area to be determined pursuant to Article XXI, below) and shall be comprised of the entire rentable areas on the second (2nd) and third (3rd) floors (at a minimum) of the Office Complex containing approximately 136,000 rentable square feet, to be constructed by Lessor west and contiguous to 87th Street and south of Raintree Drive, Scottsdale, Arizona 852______, and, subject to the naming rights of Lessee provided herein, to be known as Scottsdale Northsight. The aforesaid space leased and let unto Lessee is hereinafter referred to as the "Premises"; the land (including all easement areas appurtenant thereto) upon which the building ("Building") of which the Premises are a part is hereinafter referred to as the "Property"; and the Property and all buildings and improvements and personal property of Lessor used in connection with the operation or maintenance thereof located therein and thereon and the appurtenant parking facilities, if any, are hereinafter called the "Office Complex". Lessee hereby accepts this Lease and the Premises upon the covenants and conditions set forth herein and subject to any encumbrances (but subject also to the non-disturbance covenants contemplated in Article XV, below), covenants, conditions, restrictions and other matters of record and all applicable zoning, municipal, county, state and federal laws, ordinances and regulations governing and regulating the use of the Premises. TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or obligation on the part of Lessor to make any alterations, improvements or repairs of any kind on or about the Premises, except as expressly provided herein, for a term of ten (10) years, commencing on the first (1st) day of April, 1999 (as such date may be extended due to force majeure or Lessee's Delays, and herein referred to as the "Target Commencement Date"), and ending on the thirty-first (31st) day of March, 2009, unless sooner terminated, in the manner provided hereinafter, to be occupied and used by Lessee for general office purposes and for no other purpose, subject to the covenants and agreements hereinafter contained. The commencement of the term of this Lease shall be the later of (i) fifteen (15) days after the delivery of possession of Premises to Lessee, with the Tenant Improvements substantially completed or (ii) the delivery to Lessee of an occupancy permit for the Premises. Lessee shall not be required to accept delivery of possession prior to March 15, 1999. The commencement of operations (and not mere fixturization) by Lessee in any portion of the Premises shall be deemed to be acceptance of delivery of the Premises. ARTICLE I. BASE RENT: In consideration of the leasing aforesaid, Lessee agrees to pay to Lessor, at c/o Opus West Management Corporation, 2415 East Camelback, Road, Suite 840, Phoenix, Arizona 85016, or at such other place as Lessor from time to time may designate in writing, an annual rental equal to the product of the rentable area of the Premises multiplied by the rental rate for the applicable portion of the term of this Lease, as hereinafter set forth, which annual rental may sometimes hereinafter be referred to as the "Base Rent", payable monthly, in advance, in equal monthly installments, commencing on the first day of the term and continuing on the first day of each and every month thereafter for the next succeeding months during the balance of the term:
Applicable Portion Annual Rental Rate Per of Term Rentable Square Foot - ------------------ ---------------------- ~~Months 1 through 60 $13.40 Months 61 through 120 15.41~~
If the term commences on a date other than the first day of a calendar month or ends on a date other than the last day of a calendar month, monthly rent for the first month of the term or the last month of the term, as the case may be, shall be prorated based upon the ratio that the number of days in the term within such month bears to the total number of days in such month. The amounts set forth above as the Annual Rental Rate per Rentable Square Foot are subject to reduction, based upon any savings realized in the "Total Project Costs", pursuant to Exhibit "E" attached hereto. For this purpose, "Total Project Costs" shall include all costs incurred in the acquisition, construction, development, and completion of the Office Complex, including, without limitation, land acquisition and related costs, permits, use fees, design, survey, engineering, environmental and soils consultants, legal, financing and interest expenses, commissions, labor, materials, real estate and other taxes, and allowances of three percent (3%) for a development fee, five percent (5%) for overhead and profit and five percent (5%) for general conditions. No other general contractor employed to construct this Office Complex shall be entitled to charge such fees (although subcontractors and suppliers may charge reasonable general conditions and overhead and profit fees). (Notwithstanding the foregoing, to the extent the water use fees exceed $1.00 per gross square foot based on the area of the Building, and to the extent such excess results in the actual amount of the "Total Project Costs" (set forth on Exhibit "E" attached hereto) exceeding the budget "Total Project Costs" (before the Tenant Improvement Allowance), then such excess shall reduce the Tenant Improvement Allowance otherwise available to Lessee under this Lease.) Lessor shall be responsible to supply to the Premises the 2' x 4' layin parabolic light fixtures, the 2' x 2' layin ceiling tile and the necessary ceiling grid. To the extent the costs of supplying the materials listed in the preceding sentence results in the actual amount of the "Total Project Costs" (set forth on Exhibit "E" attached hereto) exceeding the budget "Total Project Costs" (before the Tenant Improvement Allowance and the water use fees referenced above), then such excess shall reduce the Tenant Improvement Allowance otherwise available to Lessee under this Lease. Accordingly, within sixty (60) days after the Commencement Date, Lessor shall provide to Lessee a reconciliation of the Total Project Costs, and a computation of the Base Rent (with reference to the 10.42% return) and including the 5% adjustment to the land acquisition (which adjustment shall be subject to reduction in inverse proportion to the increase in the initial area of the Premises, as designated by Lessee herein), as illustrated in Exhibit "E" . In the event the resulting "rent" is less than $13.40, then the Base Rent for months 1 through 60 shall be such "rent", and the Base Rent for months 61 through 120 shall be 115% of the reduced Base Rent amount. All work which is a component of the Total Project Costs will be performed on an "open book" basis with Lessee (subject to confidentiality covenants of Article XXV) -2- having access to all cost accounting records and books with respect to such work upon reasonable advance notice to Lessee. ARTICLE II. ADDITIONAL RENT: In addition to the Base Rent payable by Lessee under the provisions of Article I hereof, Lessee shall pay to Lessor "Additional Rent" as hereinafter provided for in this Article II. All sums under this Article II and all other sums and charges required to be paid by Lessee under this Lease (except Base Rent), however denoted, shall be deemed to be "Additional Rent". If any such amounts or charges are not paid at the time provided in this Lease, they shall nevertheless be collectible as Additional Rent with the next installment of Base Rent falling due. For purposes of this Article II, the parties hereto agree upon the following Definitions: A. The term "Lease Year" shall mean each of those calendar years commencing with and including the year during which the term of this Lease commences, and ending with the calendar year during which the term of this Lease (including any extensions or renewals) terminates. B. The term "Real Estate Taxes" shall mean and include all personal property taxes of Lessor relating to Lessor's personal property located in the Office Complex and used or useful in connection with the operation and maintenance thereof, real estate taxes and installments of special assessments, including interest thereon, relating to the Property and the Office Complex, and all other governmental charges, general and special, ordinary and extraordinary, foreseen as well as unforeseen, of any kind and nature whatsoever, or other tax, however described, which is levied or assessed by the United States of America or the state in which the Office Complex is located or any political subdivision thereof, against Lessor or all or any part of the Office Complex as a result of Lessor's ownership of the Property or the Office Complex, and payable during the respective Lease Year. It shall not include any net income tax, estate tax, inheritance tax, excess profit taxes, franchise taxes, gift taxes, capital stock taxes, other taxes applied or measured by Lessor's net income, and any items included as Operating Expenses (defined below). C. The term "Operating Expenses" shall mean and include all expenses incurred with respect to the maintenance and operation of the Property and the Office Complex as determined by Lessor's accountant in accordance with generally accepted accounting principles consistently followed, including, but not limited to property, casualty or liability insurance (and such other types of insurance typically procured by landlords for office projects comparable to the Office Complex) premiums (including insurance premiums for rent insurance), maintenance and repair costs, steam, electricity, water, sewer, gas and other utility charges, fuel, lighting (including the tubes, ballasts and starters of fluorescent parabolic lights), window washing, janitorial services, trash and rubbish removal, wages payable to employees of Lessor whose duties are connected with the operation and maintenance (and specifically excluding administration) of the Property and the Office Complex (but only for the portion of their time allocable to work related to the Office Complex (and specifically excluding administration) ), amounts paid to contractors or subcontractors for work or services performed in connection with the operation and maintenance of the Property and the Office Complex, all costs of uniforms, supplies and materials used in connection with the operation and maintenance of the Property and the Office Complex, all payroll taxes, unemployment insurance costs, vacation allowances and the -3- cost of providing disability insurance or benefits, pensions, profit sharing benefits, hospitalization, retirement or other so-called fringe benefits, and any other expense imposed on Lessor or its contractors or subcontractors, pursuant to law or pursuant to any collective bargaining agreement covering such employees, all services, supplies, repairs, replacements or other expenses for maintaining and operating the Office Complex, reasonable attorneys' fees and costs in connection with appeal or contest of real estate or other taxes or levies, and such other expenses as may be ordinarily incurred in the operation and maintenance of an office complex and not specifically set forth herein, including reasonable management fees (which, as charged to Lessee, shall not exceed two and one-half percent (2 1/2%) of the Base Rent plus Additional Rent) and the costs of a building office at the Office Complex. Lessor agrees, however, that a building office shall not be at the Office Complex, unless located in Phase II, or otherwise approved by Lessee. Lessee shall have the right to approve the janitorial service contractor. The term "Operating Expenses" shall not include any capital improvement to the Office Complex other than replacements required for normal maintenance and repair, nor shall it include repairs, restoration or other work occasioned by fire, windstorm or other insured casualty, expenses incurred in leasing or procuring tenants, leasing commissions, advertising expenses, expenses for renovating space for new tenants, or for any cost or expense incurred solely for the benefit of a tenant or occupant at the Office Complex, other than Lessee, legal expenses incident to enforcement by Lessor of the terms of any lease, interest or principal payments on any mortgage or other indebtedness of Lessor, compensation paid to any employee of Lessor above the grade of building superintendent, depreciation allowance or expense. Notwithstanding the foregoing, in the event Lessor installs equipment in or makes improvements or alterations to the Office Complex which are for the purpose of reducing energy costs, maintenance costs or other Operating Expenses (and which, based upon reasonable evidence, do reduce such costs and expenses) or which are required under any governmental laws, regulations or ordinances which were not required at the date of commencement of the term of this Lease, Lessor may include in Operating Expenses reasonable charges for interest on such investment and reasonable charges for depreciation on the same so as to amortize such investment over the reasonable life of such equipment, improvement or alteration on a straight line basis. Operating Expenses shall also be deemed to include expenses incurred by Lessor in connection with city sidewalks adjacent to the Property and any pedestrian walkway system (either above or below ground) or other public facility to which Lessor or the Office Complex is from time to time subject in connection with operations of the Property and the Office Complex. The term "Operating Expenses" shall also include any assessments or fees or other charges imposed upon the Office Complex, or upon Lessor as a result of Lessor's ownership of the Office Complex, under any encumbrances, covenants, conditions, restrictions or other matters now of record or hereafter recorded against the Office Complex. Lessor shall use commercially reasonable efforts to maintain Operating Expenses (and each component thereof) at competitive, market rates, and to cooperate with Lessee in this regard, including re-bidding any service or cost-item deemed, by Lessee, to be above competitive, market rates. Lessee's failure to assess any charges to Lessee of any additional, or previously unbilled Operating Expenses or Real Estate Taxes for a Lease Year by -4- December 31 of the following calendar year shall be deemed a waiver by Lessee of its right to assess and collect such additional unbilled amount. D. The term "Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses" shall mean the product of (i) the percentage obtained by dividing the rentable area of the Premises by the rentable area of the Office Complex, and (ii) the Real Estate Taxes and Operating Expenses for the applicable Lease Year; provided, however, the percentage used to calculate Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses shall be amended each Lease Year to the greater of the following: (i) if the total rentable area leased in the Office Complex (pursuant to leases under which the term has commenced) is ninety-five percent (95%) or less than the rentable area of the Office Complex, the percentage shall be that which the rentable area of the Premises bears to ninety-five percent (95%) of the total rentable area of the Office Complex for such Lease Year; or (ii) if the total rentable area leased in the Office Complex (pursuant to leases under which the term has commenced) is greater than ninety-five percent (95%), the percentage shall be that which the rentable area of the Premises bears to the actual rentable area of the Office Complex for such Lease Year. Rentable area shall in no event include basement storage space or garage space. E. Anything herein to the contrary notwithstanding, it is agreed that in the event the Office Complex is not fully occupied during any calendar year or any Lease Year, a reasonable and equitable adjustment shall be made by Lessor in computing the Operating Expenses for such year so that the Operating Expenses shall be adjusted to the amount that would have been incurred had the Office Complex been fully occupied during such year. Any such adjustment shall be consistent with prudent property management practices, shall be disclosed in writing to Lessee in each Lease Year's reconciliation statement of Operating Expenses provided to Lessee, and shall not conflict with the provisions of Article II.D., above. As to each Lease Year during the term of this Lease, Lessor shall estimate for each such Lease Year (i) the total amount of Real Estate Taxes and Operating Expenses; (ii) Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses; and (iii) the computation of the annual and monthly rental payable during such Lease Year as a result of increases or decreases in Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses. Said estimate shall be in writing and shall be delivered or mailed to Lessee at the Premises. Lessor shall endeavor to deliver said estimate no later than April 30 of each Lease Year. As of the date of this Lease, Lessor estimates the total amount of Real Estate Taxes and Operating Expenses for the first lease Year of Operation of the Office Complex to be approximately $6.00, per rentable square foot. Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses for each Lease Year, so estimated, in equal monthly installments, in advance, on the first day of each month during each applicable Lease Year. In the event that said estimate is delivered to Lessee after the first day of January of the applicable Lease Year, said amount, so estimated, shall be payable as Additional Rent, in equal monthly installments, in advance, on the first day of each month over the balance of such Lease Year, with the number of installments being equal to the number of full calendar months remaining in such Lease Year. From time to time during any applicable Lease Year, Lessor may re-estimate the amount of Real Estate Taxes and Operating Expenses -5- and Lessee's Pro Rata Share thereof, and in such event Lessor shall notify Lessee, in writing, of such re-estimate in the manner above set forth and fix monthly installments for the then remaining balance of such Lease Year in an amount sufficient to pay the re-estimated amount over the balance of such Lease Year after giving credit for payments made by Lessee on the previous estimate. Upon completion of each Lease Year (and in any event prior to the immediately succeeding June 30), Lessor shall cause its accountants to determine the actual amount of Real Estate Taxes and Operating Expenses for such Lease Year and Lessee's Pro Rata Share thereof and deliver a written certification of the amounts thereof (in reasonable detail) to Lessee after the end of each Lease Year. If Lessee has paid less than its Pro Rata Share of Real Estate Taxes and Operating Expenses for any Lease Year, Lessee shall pay the balance of its Pro Rata Share of the same within thirty (30) days after the receipt of such statement. If Lessee has paid more than its Pro Rata Share of Real Estate Taxes and Operating Expenses for any Lease Year, Lessor shall, at Lessee's option, either (i) refund such excess, or (ii) credit such excess against the most current monthly installment or installments due Lessor for its estimate of Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses for the next following Lease Year. A pro rata adjustment shall be made for a fractional Lease Year occurring during the term of this Lease or any renewal or extension thereof based upon the number of days of the term of this Lease during said Lease Year as compared to three hundred sixty-five (365) days and all additional sums payable by Lessee or credits due Lessee as a result of the provisions of this Article II shall be adjusted accordingly. Further, Lessee shall pay, also as Additional Rent, all other sums and charges required to be paid by Lessee under this Lease, and any tax or excise on rents, gross receipts tax, transaction privilege tax or other tax, however described, which is levied or assessed by the United States of America or the state in which the Office Complex is located or any political subdivision thereof, or any city or municipality, against Lessor in respect to the Base Rent, Additional Rent, or other charges reserved under this Lease or as a result of Lessor's receipt of such rents or other charges accruing under this Lease; provided, however, Lessee shall have no obligation to pay net income, estate or inheritance taxes of Lessor. ARTICLE III. LATE CHARGE AND OVERDUE AMOUNTS - RENT INDEPENDENT: Lessee shall pay to Lessor, as liquidated damages, a late charge equal to five percent (5%) of any amount not paid on the date when the same is due to compensate Lessor for its costs in connection with such late payment by Lessee. Notwithstanding the preceding sentence, as a condition to Lessor's assessment and collection of said late charge, the late charge shall not be due unless Lessee fails to pay any amount within ten (10) days after notice from lessor; however, said condition shall only apply to the first two (2) delinquencies during any calendar year during the term of this Lease. The assessment or collection of a late charge hereunder shall not constitute the waiver by Lessor of a default by Lessee under this Lease and shall not bar the exercise by Lessor of any rights or remedies available under this Lease. In addition, any installment of Base Rent, Additional Rent or other charges to be paid by Lessee accruing under the provisions of this Lease, which shall not be paid when due, shall bear interest at the rate of one percent (1%) per month from the date which is thirty (30) days after the date when the same is due until the same shall be paid, but if such rate exceeds the maximum interest rate permitted by law, such rate shall be reduced to the highest rate allowed by law under the circumstances. Lessee's covenants to pay the Base Rent and the Additional Rent are independent of any other covenant, condition, provision or agreement herein contained. Nothing herein contained shall be deemed to suspend or delay the payment of any amount of money or charge at the time the same becomes due and payable hereunder, or limit any other remedy of Lessor. Base Rent -6- and Additional Rent are sometimes collectively referred to as "rent". Rent shall be payable without deduction, offset, prior notice or demand, in lawful money of the United States, except as expressly provided herein. ARTICLE IV. POSSESSION OF PREMISES: Lessor shall use commercially reasonable and diligent efforts to construct and deliver the Premises as required by the provisions of this Lease. If Lessor shall be unable to give possession of the Premises on the Target Commencement Date because the construction of the Office Complex or the completion of the Premises has not been sufficiently completed to make the Premises ready for occupancy or if Lessor shall fail to provide a certificate of occupancy, or for any other reason, Lessor shall not be subject to any claims, damages or liabilities for the failure to give possession on said date except as expressly set forth in this Article IV. Under said circumstances, the rent reserved and covenant to pay same shall not commence until possession of the Premises is given or the Premises are ready for occupancy, whichever is earlier. Failure to give possession on the date of commencement of the term shall in no way affect the validity of this Lease or the obligations of Lessee hereunder; provided, however, that if the date of commencement of the initial term is delayed beyond the Target Commencement Date, the expiration date of the initial term shall be extended to provide for a full ten-year initial term of this Lease. If Lessee is given and accepts possession of the Premises on a date earlier than the date above specified for commencement of the term, and commences operating its business therefrom (and not merely installing equipment and fixtures), the rent reserved herein and all covenants, agreements and obligations herein and the term of this Lease shall commence on the date that possession of the Premises is given to Lessee. The acceptance of possession by Lessee shall be deemed conclusively to establish that the Premises and all other improvements of the Office Complex required to be constructed by Lessor for use thereof by Lessee hereunder have been completed at such time to Lessee's satisfaction and in conformity with the provisions of this Lease in all respects unless Lessee notifies Lessor in writing within sixty (60) days after commencement of the term as to any items not completed. Lessee waives any claim as to matters not listed in said notice. Lessor shall exercise commercially reasonable efforts to complete, repair or replace any aspect of the Premises set forth in said notice, within sixty (60) days of said notice. Lessee acknowledges that neither Lessor nor any agent of Lessor has made any representation or warranty with respect to the Premises or the Office Complex or with respect to the suitability or fitness of either for the conduct of Lessee's business or for any other purpose except as expressly set forth herein. Nothing contained in this Article shall affect the commencement of the Lease term or the obligation of Lessee to pay any rent due under this Lease. On or before February 1, 1999, Lessor shall notify Lessee (said notice herein referred to as the "Target Notice") of the "Target Delivery Date" (defined for purposes herein as that date when Lessor shall deliver non-exclusive possession of the Premises to Lessee with substantial completion of the Tenant Improvements at which time Lessee may commence installation of its fixtures and equipment) as well as the Target Commencement Date (which, in absence of Lessee's written approval, shall be not less than fifteen (15) days after the Target Delivery Date). If Lessor fails to provide the Target Notice as required and such failure continues for five (5) business days after notice of such failure from Lessee (which notice shall describe the obligation of Lessor to provide said notice, and the resulting termination right (described below) of Lessee), then Lessee, by subsequent notice (given prior to Lessor's Target Notice) may elect to, and thereby, terminate this Lease. -7- Tenant's existing premises for its corporate headquarters at 11811 N. Tatum Boulevard (the "Existing Premises"), is governed and created by several leases, is comprised of 55,977 rentable square feet, is scheduled to expire on March 31, 1999, and has an average base rent (before addition of the triple net charges) of $17.33 per rentable square foot. Tenant shall use diligent efforts to reach an agreement with its existing landlord to allow a holdover of such existing premises, at no extraordinary penalty or additional cost, until the Target Commencement Date, and to thereby mitigate the amount of the reimbursement obligation of Lessor described in the next paragraph. Lessor acknowledges that as of the date of this Lease, said landlord has refused to agree to any holdover arrangement. However, Lessor and Lessee shall continue to cooperate with each other in negotiating with said landlord to provide for holdover rights deemed acceptable to Lessor and Lessee. If the Target Notice indicates a Target Delivery Date which is a date beyond March 15, 1999, or a Target Commencement Date which is a date beyond April 1, 1999, then Lessor shall assist Lessee to procure substitute premises in a "Class 'B'" or better quality office project (as such category is generally understood as of the date hereof), of approximately the same size as the Existing Premises at an alternate location in the greater metropolitan Phoenix area for Lessee's benefit, until the Target Commencement Date. Lessor shall reimburse Lessee (within twenty (20) days of receipt of Lessee's demand therefore with reasonable, supporting documentation) for Lessee's out of pocket, verified costs: (i) directly related to relocating to said substitute premises from the Existing Premises; and (ii) for leasing said substitute premises, to the extent the total rent rate payable for the substitute premises exceeds the total rent rate payable at the time of expiration of the leases for the Existing Premises (collectively, the "Reimbursement Obligation"); the parties intend by the foregoing provision to have Lessor pay for the additional costs (as specified in (i) and (ii) above) incurred by Lessee as a result of Lessor's inability to complete and deliver the Premises by the dates set forth in the first sentence of this paragraph. If the actual substantial completion and delivery to Lessee of the Premises occurs after the Target Delivery Date, and the actual commencement of the term of this Lease occurs after the Target Commencement Date (as each "Target" date is set forth in the Target Notice), then Lessor shall also pay to Lessee, the sum of $40,000.00 for each month (and prorated for any partial months) transpiring between the Target Commencement Date and the actual commencement of the term of this Lease, and such amount shall be included (in addition to the amounts described in the preceding paragraph) in the "Reimbursement Obligation". If by December 31, 1998, a construction and building permit has not been issued for the Building (exclusive of the Tenant Improvements for the Premises) despite the commercially reasonable efforts of Lessor, then either party, by notice to the other within fifteen (15) days of such date, may terminate this Lease, in which case, neither party shall have any further liability to the other, and Lessor shall have no Reimbursement Obligation. Further, if by September 15, 1999, the Premises have not been substantially completed and all required occupancy permits have not been provided, then Lessor's Reimbursement Obligation shall cease accruing as of said date, and further Lessee may elect to terminate this Lease by notice to Lessor within fifteen (15) days of such date. All obligations of Lessor in this Lease to plan, develop, improve and construct the Office Complex, including the Premises, are subject to acts of God, strikes, labor troubles, failure or refusal of governmental authorities to timely issue permits or approvals or conduct reviews or inspections (despite the commercially reasonable efforts of Lessor), civil disorder, inability to procure materials (despite the commercially reasonable efforts of Lessor), restrictive governmental laws or regulations, -8- acts or omissions of Lessee which interfere with the discharge by Lessor of its obligations, the failure or refusal of Lessee to act or respond in a timely manner, or other causes beyond Lessor's reasonable control ("force majeure"). To the extent the substantial completion of the Office Complex, including the Premises, is delayed because of causes force majeure, then the dates applicable for the Target Delivery Date, the Target Commencement Date, the dates set forth in the preceding paragraph, and all other dates set forth in this Lease which relate to the construction and delivery of the Office Complex and the Premises, shall be postponed in an amount corresponding to the amount of the delays, and in addition, any Reimbursement Obligation of Lessor thereby resulting shall not be the responsibility of Lessor, notwithstanding anything in this Lease to the contrary. Lessee acknowledges that except for certain conduits, trenches and related facilities to be constructed by Lessor (to the extent described under the plans and specifications described on Exhibit "F", hereto) intended to accommodate the telephone service to the Office Complex, the failure to have operating telephone service to the Office Complex shall not affect the commencement of the term of this Lease, or the determination of the substantial completion of the Premises. ARTICLE V. SERVICES: Subject to the provisions of Article II hereof, Lessor shall provide the following services on all days excepting Saturdays, Sundays, holidays, and as otherwise stated: A. Nightly janitorial services Monday through Friday in and about the Premises; provided, however, Lessor may, but shall not be obligated to, elect to furnish janitorial service on Saturday or Sunday in lieu of furnishing such service on Friday. The janitorial services furnished to the Premises shall include normal cleaning and upkeep services, normal removal of trash and rubbish, vacuuming and spot cleaning of carpeting, maintenance of towels, tissue and other restroom supplies and such other work as is customarily performed in connection with such nightly janitorial services in an office complex similar in construction, general location, use and occupancy to the Office Complex. Lessor shall also provide periodic interior and exterior window washing and cleaning and waxing of uncarpeted floors in accordance with Lessor's reasonable schedule. B. Electrical energy will be provided for lighting and operation of office machines, air conditioning, and heating as required for normal office usage during the normal working hours set forth in subparagraph C of this Article. Office machines will include electric typewriters and other office equipment of similar low electrical consumption. This does not include special lighting in excess of building standard (2.2 watts per square foot installed), or any other item of electrical equipment which singularly consumes more than 0.5 kilowatts per hour at rated capacity or requires a voltage other than one hundred twenty (120) volts single phase. If electrical consumption exceeds the requirement of normal office use as specified above (such as in a computer room), Lessor reserves the right to include and Lessee shall pay upon receipt of invoice, a charge based on the average cost per unit of electricity for the Office Complex applied to the excess use determined by an engineer selected by Lessor and/or by submeter. At the option of either Lessor or Lessee, a submeter may be provided and installed at Lessee's expense, if allowable under law and local utility regulations. Lessee shall pay the cost of all equipment and of the installation of all facilities provided and installed by Lessor to provide such electrical capacity in excess of the above normal office standards. Lessee shall not make any installation requiring -9- excess electrical energy without first receiving Lessor's written consent thereto, which shall not be unreasonably withheld; and provided further that Lessee shall pay all costs of installation of facilities necessary to furnish such excess capacity and for such increased electrical usage. All electric lighting bulbs for specialized lighting within the Premises shall be replaced by Lessor at the expense of Lessee and shall be paid by Lessee upon receipt of invoice from Lessor as rent. The electrical service required of Lessor by this subparagraph B, and electricity for other uses consented to by Lessor, shall be available at all times subject to the requirement that Lessee pay for usage in excess of the electrical service to be provided pursuant to the terms of this subparagraph B. C. Heat and air conditioning, when necessary in Lessor's reasonable judgment (consistent with standards of prudent property management applicable for comparable office projects), for normal comfort, from 7 o'clock A.M. to 6 o'clock P.M. on non-holiday weekdays, and on Saturdays which are not holidays, from 7 o'clock A.M. to 1 o'clock P.M. Air conditioning to the Premises is to be provided based on standard lighting and normal incidental office use only. During other hours, Lessor shall provide such amounts of heating and air conditioning within designated and configured (based upon the HVAC distribution system) zones within the Premises, upon reasonable advance notice from Lessee to Lessor, which advance notice shall not be less than twenty-four (24) hours; and Lessee, upon presentation of a bill therefor, shall pay Lessor for such service on an hourly basis at the then prevailing rates as established by Lessor. As of the date of this Lease, said rate shall be $2.50 per hour per air distribution zone, subject to reasonable provider increases as a result of increased utility or other charges. D. Hot and cold water from the regular building outlets for lavatory and restrooms and for drinking purposes, at all times. E. Passenger elevator service in common with other tenants to be provided by automatic elevators, at all times. Lessor shall have the right to restrict the use of elevators for freight purposes to the freight elevator and to hours to be determined by Lessor. Lessor shall have the right to limit the number of elevators to be in operation on Saturdays, Sundays and holidays. F. Maintenance in good order, condition and repair of the parking facilities and all driveways leading thereto and keeping the same free from any unreasonable accumulation of snow. Lessor shall keep and maintain the landscaped area and parking facilities in a neat and orderly condition. Lessor reserves the right to designate areas of the appurtenant parking facilities where Lessee, its agents, employees and invitees shall park and may exclude Lessee and its agents, employees and invitees from parking in other areas as designated by Lessor; provided, however, Lessor shall not be liable to Lessee for the failure of any tenant or its invitees, employees, agents or customers to abide by Lessor's designations or restrictions. Lessee is aware that Lessor may be required to designate certain parking stalls due to governmental request or order to accommodate car or van poolers. G. Lessee shall be solely responsible for the direct payment of all utilities which are separately metered or separately charged (electric, natural gas (if any), telephone, cable television (if any) and any other special -10- utility requirements of Lessee), if any, to the Premises or to Lessee and shall make such payments to the respective utility companies prior to delinquency. Such amounts shall not be included as Operating Expenses. No interruption in, or temporary stoppage of, any of the aforesaid services caused by repairs, renewals, improvements, alterations, strikes, lockouts, labor controversy, accident, inability to obtain fuel or supplies, or other causes shall be deemed an eviction or disturbance of Lessee's use and possession, or render Lessor liable for damages, by abatement of rent or otherwise or relieve Lessee from any obligation herein set forth; provided, however, that if there is a localized interruption in, or localized temporary stoppage of, any of the aforesaid services in the Premises (as opposed to an interruption in the general vicinity of the Office Complex not under Lessor's control), and if such interruption or temporary stoppage is within the sole control of Lessor and, after notice to Lessor, Lessor does not diligently attempt and continue diligent attempts to cure such interruption or temporary stoppage, then Lessee shall be entitled to a reasonable abatement of Base Rent and Additional Rent if after twenty-four (24) hours after Lessor's receipt of notice, Lessor's efforts to cure same have failed. In no event shall Lessor be required to provide any heat, air conditioning, electricity or other service in excess of that permitted by voluntary or involuntary guidelines or laws, ordinances or regulations of governmental authority. Lessor reserves the right, from time to time, to make reasonable and non-discriminatory modifications to the above standards for utilities and services. Lessee shall not, without the prior written consent of Lessor, use any apparatus or device in or about the Premises which shall cause any substantial noise or vibration or which will increase the amount of electricity or water, if any, usually furnished or supplied for use of the Premises as general office space. Lessee shall not connect with electric current or water pipes, except through existing electrical or water outlets already in the Premises, any apparatus or device for the purposes of using electric current or water. ARTICLE VI. INSURANCE: Lessor shall keep the Office Complex insured for the benefit of Lessor in an amount equivalent to the full replacement value thereof (excluding foundation, grading and excavation costs and a commercially reasonable deductible) against: (a) loss or damage by fire; and (b) such other risk or risks of a similar or dissimilar nature as are now or may be customarily covered with respect to buildings and improvements similar in construction, general location, use, occupancy and design to the Office Complex, including, but without limiting the generality of the foregoing, windstorms, hail, explosion, vandalism, malicious mischief, civil commotion and such other coverage as may be deemed necessary by Lessor, provided such additional coverage is obtainable and provided such additional coverage is such as is customarily carried with respect to buildings and improvements similar in construction, general location, use, occupancy and design to the Office Complex. These insurance provisions shall in no way limit or modify any of the obligations of Lessee under any provision of this Lease. Lessor agrees that such policy or policies of insurance shall permit releases of liability as provided herein and/or waiver of subrogation clause as to Lessee, and Lessor waives, releases and discharges Lessee from all claims or demands whatsoever which Lessor may have or acquire arising out of damage to or destruction of the Office Complex or loss of use thereof occasioned by fire or other casualty, whether such claim or demand may arise because of the negligence or fault of Lessee or its agents, employees, -11- customers or business invitees, or otherwise, and Lessor agrees to look to the insurance coverage only in the event of such loss. Insurance premiums paid thereon shall be a portion of the "Operating Expenses" described in Article II hereof. Notwithstanding the above, in the event a release of Lessee or waiver of subrogation as to Lessee (without invalidation of coverage) becomes generally unavailable in insurance policies as to commercial office projects similar to the Office Complex, the release and any waiver of subrogation above provided for shall cease upon written notice by Lessor to Lessee of such event. Thereafter, Lessee may, upon written notice to Lessor, require Lessor to secure a waiver of subrogation as to Lessee if (a) a right to waive subrogation as to Lessee thereafter becomes available without increased premium, or (b) a right to waive subrogation as to Lessee becomes available and Lessee pays any increased premium required in connection therewith. Lessee shall keep all of its machinery, equipment, furniture, fixtures, personal property (including also property under the care, custody or control of Lessee) and business interests which may be located in, upon or about the Premises insured for the benefit of Lessee in an amount equivalent to the full replacement value or insurable value thereof against: (a) loss or damage by fire; and (b) such other risk or risks of a similar or dissimilar nature as are now, or may in the future be, customarily covered with respect to a tenant's machinery, equipment, furniture, fixtures, personal property and business located in a building similar in construction, general location, use, occupancy and design to the Office Complex, including, but without limiting the generality of the foregoing, windstorms, hail, explosions, vandalism, theft, malicious mischief, civil commotion and such other coverage as Lessee may deem appropriate or necessary. Lessee agrees that such policy or policies of insurance shall permit releases of liability as provided herein and/or waiver of subrogation clause as to Lessor, and Lessee waives, releases and discharges Lessor and its agents, employees and contractors from all claims or demands whatsoever which Lessee may have or acquire arising out of damage to or destruction of the machinery, equipment, furniture, fixtures, personal property and loss of use thereof occasioned by fire or other casualty, whether such claim or demand may arise because of the negligence or fault of Lessor or its agents, employees, contractors or otherwise, and Lessee agrees to look to the insurance coverage only in the event of such loss. Lessee shall be permitted to "self-insure" or to establish deductible limits under such policies, provided, however, that the amount of such retained risk shall not exceed, at any time, ten percent (10%) of Lessee's Tangible Net Worth (defined in the last paragraph of this Article), as the same may change from time to time. Lessee agrees that such policy or policies of insurance shall permit releases of liability as provided herein and/or waiver of subrogation clause as to Lessor, and Lessee waives, releases and discharges Lessor and its agents, employees and contractors from all claims or demands whatsoever which Lessee may have or acquire arising out of damage to or destruction of the machinery, equipment, furniture, fixtures, personal property and loss of use thereof occasioned by fire or other casualty, whether such claim or demand may arise because of the negligence or fault of Lessor or its agents, employees, contractors or otherwise, and Lessee agrees to look to the insurance coverage only in the event of such loss. Lessor shall, as a portion of the Operating Expenses defined in Article II, maintain, for its benefit and the benefit of its managing agent, general public liability insurance against claims for personal injury, death or property damage occurring upon, in or about the Complex, such insurance to afford protection to Lessor -12- and its managing agent in such amounts as Lessor deems commercially reasonable and comparable to the amounts maintained for projects similar to the Complex, but in no event less than $2,000,000.00 of total insurance coverage for the commercial general liability policy. Lessee shall, at Lessee's sole cost and expense but for the mutual benefit of Lessor, its managing agent and Lessee, maintain general public liability insurance against claims for personal injury, death or property damage occurring upon, in or about the Premises, such insurance to afford protection to Lessor, its managing agent and Lessee to the limit of not less than One Million and No/100 Dollars ($1,000,000.00) in respect to the injury or death to a single person, and to the limit of not less than Two Million and No/100 Dollars ($2,000,000.00) in respect to any one accident, and to the limit of not less than Five Hundred Thousand and No/100 Dollars ($500,000.00) in respect to any property damage or any greater amounts, if Lessee procures insurance with greater limits. Such policies of insurance shall be written in companies reasonably satisfactory to Lessor, naming Lessor and its managing agent as additional insureds thereunder, and such policies, or a memorandum or certificate of such insurance, shall be delivered to Lessor, which certificate shall require the insurance underwriter to notify Lessor, not less than thirty (30) days prior to any cancellation or termination of such insurance coverage. At such time as insurance limits required of tenants in office buildings in the area in which the Office Complex is located are generally increased to greater amounts, Lessor shall have the right to require such greater limits as may then be customary. Lessee agrees to include in such policy the contractual liability coverage insuring Lessee's indemnification obligations provided for herein. Any such coverage shall be deemed primary to any liability coverage secured by Lessor. Such insurance shall also afford coverage for all claims based upon acts, omissions, injury or damage, which claims occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period. Lessee agrees to indemnify, protect, defend and hold harmless Lessor and Lessor's partners, shareholders, employees, lender and managing agent harmless from and against any and all claims, losses, costs, liabilities, actions and damages, including without limitation attorneys' fees and costs, by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from any breach or default on the part of Lessee in the performance of any covenant or agreement on the part of Lessee to be performed, pursuant to the terms of this Lease, or arising from any act or negligence on the part of Lessee or its agents, contractors, servants, employees or licensees, or arising from any accident, injury or damage to the extent caused by Lessee or its agents or employees to any person, firm or corporation occurring during the term of this Lease or any renewal thereof, in or about the Premises and the Office Complex, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred in or about any such claim or action or proceeding brought thereon; and in case any action or proceeding be brought against Lessor or its managing agent, by reason of any such claim, Lessee upon notice from Lessor, covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to Lessor. Lessee agrees, to the extent not expressly prohibited by law, that Lessor and Lessor's agents, employees and servants shall not be liable, and Lessee waives all claims for damage to property and business sustained during the term of this Lease by Lessee occurring in or about the Office Complex, resulting directly or indirectly from any existing or future condition, defect, matter or thing in the Premises, the Office Complex or any part thereof, or from equipment or appurtenances becoming out of repair, or from accident, or from any occurrence or act or omission of Lessor, Lessor's agents, employees or servants (other than as a result of the gross negligence or willful misconduct of Lessor, its agents, employees or servants), any tenant or occupant of the Office -13- Complex or any other person. This paragraph shall apply especially, but not exclusively, to damage caused as aforesaid or by the flooding of basements or other subsurface areas, or by refrigerators, sprinkling devices, air conditioning apparatus, water, snow, frost, steam, excessive heat or cold, falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or leaking of pipes or plumbing fixtures, and shall apply equally, whether any such damage results from the act or omission of other tenants or occupants in the Office Complex or any other persons, and whether such damage be caused by or result from any of the aforesaid, or shall be caused by or result from other circumstances of a similar or dissimilar nature. Anything herein to the contrary notwithstanding, in the event any damage to the Office Complex results from any act or omission of Lessee or its agents, employees or invitees, and all or any portion of Lessor's loss is within the "deductible" portion of Lessor's insurance coverage, Lessee shall pay to Lessor the amount of such deductible loss (not to exceed $1,000 per event). All property in the Office Complex or on the Premises belonging to Lessee or its agents, employees or invitees or otherwise located at the Premises, shall be at the risk of Lessee only, and Lessor shall not be liable for damage thereto or theft, misappropriation or loss thereof, and Lessee agrees to defend and hold Lessor and Lessor's agents, employees and servants harmless and indemnify them against claims and liability for injuries to such property. Lessee shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which will in any way increase the existing rate of or affect in any other way any fire or other insurance upon the Office Complex or any of its contents, or cause a cancellation of any insurance policy covering the Office Complex or any of its contents. Notwithstanding anything to the contrary contained herein, Lessee shall within thirty (30) days of demand, reimburse Lessor for the full amount of any additional premium charged for such policy by reason of Lessee's failure to comply with the provisions of this paragraph, it being understood that such demand for reimbursement shall not be Lessor's exclusive remedy. Lessee shall promptly, upon demand, reimburse Lessor for any additional premium charged for any such policy by reason of Lessee's failure to comply with the provisions of this Article. In the event Lessee fails to provide Lessor with evidence of insurance required under this Article VI, Lessor may, but shall not be obligated to, and after ten (10) days demand upon Lessee, and without waiving or releasing Lessee from any obligation contained in this Lease, obtain such insurance and Lessee agrees to repay, upon demand, all such sums incurred by Lessor in effecting such insurance. All such sums shall become a part of the Additional Rent payable hereunder, but no such payment by Lessor shall relieve Lessee from any default under this Lease. For purposes hereof, "Tangible Net Worth" shall mean equity of Lessee and its subsidiaries on a consolidated basis determined in accordance with GAAP, minus the net book value of all intangible assets including, without limitation, good will, trademarks, trade names, service marks, brand names, copyrights, patents and unamortized debt discount and expense, organizational expenses and the excess of the equity in any subsidiary over the cost of the investment in such subsidiary. ARTICLE VII. CERTAIN RIGHTS RESERVED BY LESSOR: Lessor reserves the following rights exercisable without notice and without liability to Lessee and without effecting an eviction, constructive or actual, or disturbance of Lessee's use or possession, or giving rise to any claim for setoff or abatement of rent: A. Subject to Article XXXVI, below, to control, install, affix and maintain any and all signs on the Property, or on the exterior of the Office Complex and in the corridors, entrances and other common areas thereof, -14- except those signs within the Premises not visible from outside the Premises. B. To reasonably designate, limit, restrict and control any service in or to the Office Complex, including but not limited to the designation of sources from which Lessee may obtain sign painting and lettering (however, Lessor agrees not to unreasonably withhold its consent to Lessee's designation). Any restriction, designation, limitation or control imposed by reason of this subparagraph shall be imposed uniformly on Lessee and other tenants occupying space in the Office Complex, and pursuant to the comprehensive sign program, applicable to the Office Complex, which shall be subject to Lessee's reasonable consent. C. To retain at all times and to use in appropriate instances (which, except during an emergency, shall require reasonable prior notice) keys to all doors within and into the Premises. No locks shall be changed without the prior written consent of Lessor. This provision shall not apply to Lessee's safes or other areas maintained by Lessee for the safety and security of monies, securities, negotiable instruments or similar items. D. To make repairs, improvements, alterations, additions or installations, whether structural or otherwise, in and about the Office Complex, or any part thereof, and for such purposes to enter upon the Premises (after reasonable advance notice of twenty-four (24) hours), and during the continuation of any of said work, to temporarily close doors, entryways, public spaces and corridors in the Office Complex and to interrupt or temporarily suspend services and facilities. E. To restrict or prohibit vending or dispensing machines of any kind in or about the Premises; provided, however, Lessor consents to the installation of vending machines in the pantry or kitchen areas of the Premises for the dispensing of soda and other similar drinks and snack foods to only Lessee's employees, clients and visitors. F. To approve the weight, size and location of safes and other heavy equipment and articles in and about the Premises and the Office Complex and to require all such items to be moved into and out of the Office Complex and the Premises only at such times and in such manner as Lessor shall direct in writing. G. To grant to anyone the exclusive right to conduct any particular business or undertaking in the Office Complex other than general office use, for only the following businesses: banks, savings and loan associations, candy and/or tobacco shops, and other stores selling retail products. Lessor and its agents may enter the Premises at any time in case of emergency and shall have the right to use any and all means which Lessor may deem proper to open such doors during an emergency in order to obtain entry to the Premises. Any entry to the Premises obtained by Lessor in the event of an emergency shall not, under any circumstances, be construed or deemed to be a forcible or unlawful entry into, or detainer of, the Premises, or to be an eviction of Lessee from the Premises or any portion thereof. Lessee shall permit Lessor and its agents twenty-four (24) hours advance notice, to enter and pass through the Premises or any part thereof at reasonable times during normal business hours to: (a) post notices of nonresponsibility; and (b) exhibit the Premises to holders of encumbrances on the interest of Lessor under the -15- Lease and to prospective purchasers, mortgagees or lessees of the Office Complex. All covenants and agreements to be performed by Lessee under any of the terms of this Lease shall be performed by Lessee at Lessee's sole cost and expense and without any abatement of rent. If Lessee shall fail to pay any sum of money (other than rent due Lessor) required to be paid by it hereunder or shall fail to perform any other act on its part to be performed hereunder, including, but not limited to, the failure to commence and complete repairs promptly and adequately, and the failure to remove any liens or otherwise to perform any act or fulfill any obligation required of Lessee under this Lease, Lessor may, but shall not be obligated to do so, without waiving or releasing Lessee from any obligations of Lessee, and upon reasonable prior notice to Lessee, make any such payment or perform any such act on Lessee's part to be made or performed as in this Lease provided. All sums so paid by Lessor and all necessary incidental costs, together with an administrative charge in the amount of ten percent (10%) of any costs incurred by Lessor, and interest thereon at the rate set forth in Article III accruing from the date paid or incurred by Lessor until reimbursed to Lessor by Lessee, shall be payable to Lessor by Lessee as rent on demand and Lessee covenants to pay all such sums. Lessor shall have (in addition to any other right or remedy of Lessor) the same rights and remedies in the event of Lessee's nonpayment of such sums, as in the case of default by Lessee in the payment of rent to Lessor. ARTICLE VIII. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make any improvements, alterations, additions or installations in excess of $10,000.00 or otherwise affecting the Building structure or systems, in or to the Premises (hereinafter referred to as "Work") without Lessor's prior written consent, which consent may not be unreasonably withheld. Along with any request for Lessor's consent and before commencement of the Work or delivery of any materials to be used in the Work to the Premises or into the Office Complex, Lessee shall furnish Lessor with plans and specifications, names and addresses of contractors, copies of contracts, necessary permits and licenses, an indemnification in such form and amount as may be reasonably satisfactory to Lessor, and for Work estimated to cost $100,000.00 or more, a performance bond executed by a commercial surety reasonably satisfactory to Lessor in an amount equal to the cost of the Work and for the payment of all liens for labor and material arising therefrom. Lessee agrees to defend and hold Lessor forever harmless from any and all claims and liabilities of any kind and description which may arise out of or be connected in any way with said improvements, alterations, additions or installations. All Work shall be done only by contractors or mechanics reasonably approved by Lessor and at such time and in such manner as Lessor may from time to time reasonably designate. All Work done by Lessee or its agents, employees or contractors shall be done in such a manner as to avoid labor disputes. Lessee shall pay the cost of all such improvements, alterations, additions or installations (including a reasonable charge, not in excess of prevailing market rates, for Lessor's services and for Lessor's inspection and engineering time) and the cost of painting, restoring or repairing the Premises and the Office Complex occasioned by such improvements, alterations, additions or installations. Upon completion of the Work, Lessee shall furnish Lessor with contractor's affidavits, full and final waivers of liens and receipted bills covering all labor and materials expended and used. The Work shall comply with all insurance requirements and all laws, ordinances, rules and regulations of all governmental authorities and shall be constructed in a good and workmanlike manner. Lessee shall permit Lessor to inspect construction operations in connection with the Work. Lessee shall not be allowed to make any improvements, alterations, additions or installations if such action results or would result in a labor dispute or otherwise would materially interfere with Lessor's operation of the Office Complex. Lessor, by written notice to Lessee given at or prior to termination of this Lease, may require Lessee, at -16- Lessee's sole cost and expense, to remove any improvements, alterations, additions or installations which are not typical of similar office projects used for general office purposes, installed by Lessee in the Premises and to repair or restore any damage caused by the installation and removal of such improvements, alterations, additions or installations; provided, however, the only improvements, alterations, additions or installations which Lessee shall remove shall be those specified in Lessor's notice. Lessee shall keep the Premises and the Office Complex free from any liens arising out of any work performed, material furnished or obligations incurred by Lessee, and shall indemnify, protect, defend and hold harmless Lessor from any liens and encumbrances arising out of any work performed or material furnished by or at the direction of Lessee. In the event that Lessee shall not, within twenty (20) days following the imposition of any such lien, cause such lien to be released of record by payment or posting of a proper bond, Lessor shall have, in addition to all other remedies provided herein and by law, the right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of and/or defense against the claim giving rise to such lien. All such sums paid by Lessor and all expenses incurred by it in connection therewith, including attorneys' fees and costs, shall be payable as Additional Rent to Lessor by Lessee on demand with interest at the rate provided in Article III accruing from the date paid or incurred by Lessor until reimbursed to Lessor by Lessee. ARTICLE IX. REPAIRS: Subject to Article VI hereof, Lessee shall, during the term of this Lease, at Lessee's expense, keep the Premises in as good order, condition and repair as they were at the time Lessee took possession of the same, reasonable wear and tear and damage from fire and other casualties excepted. Lessee shall keep the Premises in a neat and sanitary condition, and Lessee shall not commit any nuisance or waste on the Premises or in, on or about the Office Complex, throw foreign substances in the plumbing facilities, or waste any of the utilities furnished by the Lessor. All uninsured damage or injury to the Premises or to the Office Complex caused by Lessee moving furniture, fixtures, equipment or other devices in or out of the Premises or the Office Complex or by installation or removal of furniture, fixtures, equipment, devices or other property of Lessee or its agents, contractors, servants or employees, due to carelessness, omission, neglect, improper conduct or other cause of Lessee or its servants, employees, agents, visitors or licensees, shall be repaired, restored and replaced promptly by Lessee at its sole cost and expense to the satisfaction of Lessor. All repairs, restorations and replacements shall be in quality and class equal to the original work and shall comply with all requirements of this Lease. Subject to Article II hereof and to Lessee's specific obligations, except to the extent of any damage caused by the fault or negligence of Lessee, Lessor shall maintain and keep in good order, condition and repair all common areas of the Office Complex and the structural portions of the Office Complex, including the outer walls, roof, floors, foundations, load bearing members, trusses, and joists, the HVAC facilities serving the Premises, and the portions of the plumbing and electrical lines located outside of the Premises which serve the Premises. Lessor and its employees and agents shall have the right to enter the Premises at any reasonable time or times after twenty-four (24) hours advance notice, for the purpose of inspection, cleaning, repairs, altering or improving the same but nothing contained herein shall be construed as imposing any obligation on Lessor to make any repairs, improvements, alterations, additions or installations which are the obligation of Lessee. Either party may give written notice to the other party at least thirty (30) days prior to vacating the Premises for the express purpose of arranging a meeting for a joint inspection of the Premises. -17- ARTICLE X. ASSIGNMENT AND SUBLETTING: Lessee shall not, without the prior written consent of Lessor, (i) transfer, pledge, mortgage or assign this Lease or any interest hereunder; (ii) permit any assignment of this Lease by voluntary act, operation of law or otherwise; (iii) sublet the Premises or any part thereof; or (iv) permit the use of the Premises by any parties other than Lessee and its agents and employees. Notwithstanding the foregoing, a sublease or assignment to a subsidiary of Lessee, or an arrangement resulting from a merger or reorganization in which the surviving entity has a "Tangible Net Worth" (defined in Article VI of not less than Lessee's immediately prior to the merger or reorganization, shall not require the consent of Lessor. Lessee shall seek such written consent of Lessor by a written request therefor, setting forth such information as Lessor may deem necessary. Lessee shall, by notice in writing, advise Lessor of Lessee's intention, from, on and after a stated date (which shall not be less than twenty (20) days after the date of Lessee's notice), to assign this Lease or to sublet any part or all of the Premises for the balance or any part of the term. Lessee's notice shall include all of the terms of the proposed assignment or sublease and shall state the consideration therefor. Lessee's notice shall state the name and address of the proposed assignee or subtenant and a. true and complete copy of the proposed assignment or sublease shall be delivered to Lessor with Lessee's notice. Lessor, upon receiving Lessee's notice with respect to any such space, shall not unreasonably withhold its consent to Lessee's assignment of the Lease or subletting such space to the party identified in Lessee's notice; provided, however, that in the event Lessor consents to any such assignment or subletting, and as a condition thereto, Lessee shall pay to Lessor fifty percent (50%) of all profit derived by Lessee from such assignment or subletting. For purposes of the foregoing, profit shall be deemed to include, but shall not be limited to, the amount of all rent payable by such assignee or sublessee in excess of the Base Rent, and rent adjustments, payable by Lessee under this Lease after recovery by Lessee of its reasonable and necessary costs incurred in procuring the sublease or assignment. If a part of the consideration for such assignment or subletting shall be payable other than in cash, the payment to Lessor shall be in cash for its share of any non-cash consideration based upon the fair market value thereof. Lessee shall and hereby agrees that it will furnish to Lessor upon request from Lessor a complete statement, certified by an independent certified public accountant, setting forth in detail the computation of all profit derived and to be derived from such assignment or subletting, such computation to be made in accordance with generally accepted accounting principles. Lessee agrees that Lessor and its authorized representatives shall be given access at all reasonable times to the books, records and papers of Lessee relating to any such assignment or subletting, and Lessor shall have the right to make copies thereof. The percentage of Lessee's profit due Lessor hereunder shall be paid by Lessee to Lessor within ten (10) business days of receipt by Lessee of all payments made from time to time by such assignee or sublessee to Lessee. For purposes of the foregoing, any change in the partners of Lessee, if Lessee is a partnership, or, if Lessee is a corporation, any transfer of any or all of the shares of stock of Lessee by sale, assignment, operation of law or otherwise resulting in a change in the present control of such corporation by the person or persons owning a controlling portion of such shares as of the date of this Lease, shall be deemed to be an assignment within the meaning of this Article X. Unless the express, written consent of Lessor is given regarding releasing Lessee, any subletting or assignment hereunder shall not release or discharge Lessee of or from any liability, whether past, present or future, under this Lease, and Lessee shall continue fully liable thereunder. Lessor shall have no obligation to agree to such release or discharge. The subtenant or subtenants -18- or assignee shall agree in a form satisfactory to Lessor to comply with and be bound by all of the terms, covenants, conditions, provisions and agreements of this Lease to the extent of the space sublet or assigned, and Lessee shall deliver to Lessor promptly after execution an executed copy of each such sublease or assignment and an agreement of compliance by each such subtenant or assignee. Consent by Lessor to any assignment of this Lease or to any subletting of the Premises shall not be a waiver of Lessor's rights under this Article X as to any subsequent assignment or subletting. Any sale, assignment, mortgage, transfer or subletting of this Lease which is not in compliance with the provisions of this Article X shall be of no effect and void. Lessor's right to assign its interest in this Lease shall remain unqualified. Lessor may make a reasonable charge to Lessee for any reasonable attorneys' fees or expenses incident to a review of any documentation related to any proposed assignment or subletting by Lessee. Notwithstanding anything to the contrary in this Lease, Lessee shall not assign its rights under this Lease or sublet all or any part of the Premises to a person, firm or corporation which is (or, immediately prior to such subletting or assignment, was) a tenant or occupant of the Office Complex owned by Lessor. The consent of Lessor to a transfer may not be unreasonably withheld, provided that should Lessor withhold its consent for any of the following reasons, which list is not exclusive, such withholding shall be deemed to be reasonable: (a) A proposed transferee whose occupation of the Premises would cause a diminution in the reputation of the Office Complex or the other businesses located therein; (b) A proposed transferee whose impact on the common areas or the other occupants of the Office Complex would be disadvantageous; or (c) A proposed transferee whose occupancy will require any variation in the terms and conditions of this Lease. ARTICLE XI. DAMAGE BY FIRE OR OTHER CASUALTY: If fire or other casualty shall render the whole or any material portion of the Premises untenantable, and the Premises can reasonably be expected to be made tenantable within one hundred twenty (120) days from the date of such event, then Lessor shall repair and restore the Premises and the Office Complex to as near their condition prior to the fire or other casualty as is reasonably possible within such one hundred twenty (120) day period (subject to delays for causes beyond Lessor's reasonable control) and notify Lessee that it will be doing so, such notice to be mailed within thirty (30) days from the date of such damage or destruction, and this Lease shall remain in full force and effect, but the rent for the period during which the Premises are untenantable shall be abated pro rata (based upon the portion of the Premises which is untenantable). If Lessor is required to repair the Office Complex and/or the Premises, as aforesaid, said work shall be undertaken and prosecuted with all due diligence and speed. If fire or other casualty shall render the whole or any material part of the Premises untenantable and the Premises cannot reasonably be expected to be made tenantable within one hundred twenty (120) days from the date of such event, then either party, by notice in writing to the other mailed within thirty (30) days from the date of such damage or destruction, may terminate this Lease effective upon a date within thirty (30) days from the date of such notice. In the event that more than fifty percent (50%) of the value of the specific office structure of which the Premises is a part is damaged or destroyed by fire or other casualty, and irrespective of -19- whether damage or destruction can be made tenantable within one hundred twenty (120) days thereafter, then at Lessor's option, by written notice to Lessee, mailed within forty-five (45) days from the date of such damage or destruction, Lessor may terminate this Lease effective upon a date within ninety (90) days from the date of such notice to Lessee. Further, if the foregoing damage or destruction results in a materially adverse effect on Lessee's use and enjoyment of the Premises, the Lessee shall have the same right to terminate as is provided to Lessor (and within the same time periods) in the foregoing sentence. If fire or other casualty shall render any material portion of the Premises or any material portion of the Office Complex untenantable and the insurance proceeds are not sufficient to make repairs, then Lessor may, by notice to Lessee, mailed within thirty (30) days from the date of such damages or destruction, terminate this Lease effective upon a date within thirty (30) days from the date of such notice. However, Lessee may within fifteen (15) days from Lessor's notice of termination elect to fund the repair cost shortfall and upon making such funds available to lessor or an independent escrowee within fifteen (15) days of Lessee's election notice, Lessor's termination election shall be rescinded, and Lessor shall proceed to repair or restore the Premises and the Office Complex. If the Premises or the Office Complex is damaged, and such damage is of the type insured against under the fire and special form property damage insurance maintained by Lessor hereunder, the cost of repairing said damage up to the amount of the deductible under said insurance policy shall be included as a part of the Operating Expenses. If the damage is not covered by such insurance policies and Lessor elects to repair the damage, then Lessee shall pay Lessor a pro rata share of the "deductible amount" (if any) under Lessor's insurance policies based on Lessee's percentage interest of the Premises and, if the damage was due to an act or omission of Lessee, Lessee shall pay Lessor the difference between the actual cost of repair and any insurance proceeds received by Lessor. If fire or other casualty shall render the whole or any material part of the Premises untenantable and the Premises cannot reasonably be expected to be made tenantable within one hundred twenty (120) days from the date of such event and neither party hereto terminates this Lease pursuant to its rights herein or in the event that more than fifty percent (50%) of the value of the Office Complex is damaged or destroyed by fire or other casualty, and Lessor does not terminate this Lease pursuant to its option granted herein, or in the event that fifty percent (50%) or less of the value of the Office Complex is damaged or destroyed by fire or other casualty and neither the whole nor any material portion of the Premises is rendered untenantable, then Lessor shall repair and restore the Premises and the Office Complex to as near their condition prior to the fire or other casualty as is reasonably possible with all due diligence and speed (subject to delays for causes beyond Lessor's reasonable control) and the rent for the period during which the Premises are untenantable shall be abated pro rata (based upon the portion of the Premises which is untenantable). In no event shall Lessor be obligated to repair or restore any special equipment or improvements installed by Lessee. Anything herein contained to the contrary notwithstanding, Lessor shall not be obligated to spend more than the net insurance proceeds received by Lessor on account of any fire or other casualty in order to repair or restore the Premises or the Office Complex following such casualty; provided, however, Lessor shall notify Lessee promptly after the casualty if Lessor is unwilling to expend more than the net insurance proceeds. In the event of a termination of this Lease pursuant to this Article XI, rent shall be apportioned on a per diem basis and paid to the date of the fire or other casualty. -20- ARTICLE XII. EMINENT DOMAIN: If the whole of or any substantial part of the Premises is taken by any public authority under the power of eminent domain, or taken in any manner for any public or quasi-public use, so as to render the remaining portion of the Premises unsuitable for the purposes intended hereunder, then the term of this Lease shall cease as of the day possession shall be taken by such public authority and Lessor shall make a pro rata refund of any prepaid rent. All damages awarded for such taking under the power of eminent domain or any like proceedings shall belong to and be the property of Lessor, Lessee hereby assigning to Lessor Lessee's interest, if any, in said award. In the event that fifty percent (50%) or more of the building area or fifty percent (50%) or more of the value of the Office Complex is taken by public authority under the power of eminent domain, then, at Lessor's option, by written notice to Lessee mailed within thirty (30) days from the date possession shall be taken by such public authority, Lessor may terminate this Lease effective upon a date within thirty (30) days from the date of such notice to Lessee. Further, if the whole of or any material part of the Premises is taken by public authority under the power of eminent domain, or taken in any manner for any public or quasi-public use, so as to render the remaining portion of the Premises unsuitable for the purposes intended hereunder, upon delivery of possession to the condemning authority pursuant to the proceedings, Lessee may, at its option, terminate this Lease as to the remainder of the Premises by written notice to Lessor, such notice to be given to Lessor within thirty (30) days after Lessee receives notice of the taking. Lessee shall not have the right to terminate this Lease pursuant to the preceding sentence unless (i) the business of Lessee conducted in the portion of the Premises taken cannot be carried on with substantially the same utility and efficiency in the remainder of the Premises (or any substitute space securable by Lessee pursuant to clause (ii) hereof); and (ii) Lessee cannot secure substantially similar (in Lessee' s reasonable judgment) alternate space upon the same terms and conditions as set forth in this Lease (including rental) from Lessor in the Office Complex. Any notice of termination shall specify the date no more than sixty (60) days after the giving of such notice as the date for such termination. Anything in this Article XII to the contrary notwithstanding, Lessee shall have the right to prove in any condemnation proceedings and to receive any separate award which may be made for damages to or condemnation of Lessee's movable trade fixtures and equipment and for moving expenses; provided, however, Lessee shall in no event have any right to receive any award for its interest in this Lease or for loss of leasehold; and, provided further, Lessee shall not be entitled to claim any award to the extent the award to Lessor would be reduced below the amount which would be allowed to Lessor absent such claim by Lessee. Anything in this Article XII to the contrary notwithstanding, in the event of a partial condemnation of the Office Complex or the Premises and this Lease is not terminated, Lessor shall, at its sole cost and expense, restore the Premises and Office Complex to a complete architectural unit and the Base Rent provided for herein during the period from and after the date of delivery of possession pursuant to such proceedings to the termination of this Lease shall be reduced proportionately based upon the resulting rentable area of the Premises versus the rentable area of the Premises prior to such taking. ARTICLE XIII. SURRENDER OF PREMISES: On the last day of the term of this Lease, or on the sooner termination thereof, Lessee shall peaceably surrender the Premises in good condition and repair consistent with Lessee's duty to make repairs as herein provided. On or before the last day of the term of this Lease, or the date of sooner termination thereof, Lessee shall, at its sole cost and expense, remove all of its property and trade fixtures and equipment from the Premises, and all property not removed shall be deemed abandoned. Lessee hereby appoints Lessor its agent to remove all property of Lessee from the Premises upon termination of this Lease at the sole cost and risk of Lessee, and Lessor shall not be liable for damage, theft, misappropriation or loss thereof and Lessor -21- shall not be liable in any manner in respect thereto. Lessee shall pay all costs and expenses of such removal. Lessee shall leave the Premises in good order, condition and repair, reasonable wear and tear and damage from fire and other casualty not caused by Lessee excepted. Lessee shall reimburse Lessor upon demand for any expenses incurred by Lessor with respect to removal, transportation or storage of abandoned property and with respect to restoring said Premises to good order, condition and repair. All improvements, alterations, additions, installations and fixtures, other than Lessee's trade fixtures and equipment, which have been made or installed by either Lessor or Lessee upon the Premises shall remain the property of Lessor and shall be surrendered with the Premises as a part thereof, unless Lessee is required to remove same pursuant to the provisions of Article VIII hereof. Lessee shall promptly surrender all keys for the Premises to Lessor at the place then fixed for the payment of rent and shall inform Lessor of the combinations of any vaults, locks and safes left on the Premises. ARTICLE XIV. DEFAULT OF LESSEE: The occurrence of any one or more of the following events (in this Article sometimes called "Event of Default") shall constitute a default and breach of this Lease by Lessee: A. If Lessee fails to pay any Base Rent or Additional Rent payable under this Lease or fails to pay any obligation required to be paid by Lessee when and as the same shall become due and payable, and such default continues for a period of ten (10) days after written notice thereof given by Lessor to Lessee. B. If Lessee fails to perform any of Lessee's nonmonetary obligations under this Lease for a period of thirty (30) days after written notice from Lessor; provided that if more time is required to complete such performance, Lessee shall not be in default if Lessee commences such performance within the thirty-day period and thereafter diligently pursues its completion. However, Lessor shall not be required to give such notice if Lessee's failure to perform constitutes a non-curable breach of this Lease. The notice required by this subsection is intended to satisfy any and all notice requirements imposed by law on Lessor and is not in addition to any such requirement. C. If Lessee, by operation of law or otherwise, violates the provisions of Article X hereof relating to assignment, sublease, mortgage or other transfer of Lessee's interest in this Lease or in the Premises or in the income arising therefrom. D. If Lessee, by operation of law or otherwise, violates the provisions of Article XVI.R relating to compliance with environmental laws. E. If (i) Lessee makes a general assignment or general arrangement for the benefit of creditors; (ii) a petition for adjudication of bankruptcy or for reorganization or rearrangement is filed by or against Lessee and is not dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease and possession is not restored to Lessee within thirty (30) days; or (iv) if substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease is subjected to attachment, execution or other judicial or nonjudicial seizure which is not discharged within thirty (30) days. If a court of competent jurisdiction determines that any of the acts described in this subsection does not constitute an Event of Default and a trustee is appointed to take possession (or if Lessee -22- remains a debtor in possession) and such trustee or Lessee transfers Lessee's interest hereunder, then Lessor shall receive, as Additional Rent, the difference between the rent (or any other consideration) paid in connection with such assignment or sublease and the rent payable by Lessee hereunder. As used in this subsection, the term "Lessee" shall also mean any guarantor of Lessee's obligations under this Lease. If any such Event of Default shall occur, Lessor, at any time during the continuance of any such Event of Default, may give written notice to Lessee stating that this Lease shall expire and terminate on the date specified in such notice, and upon the date specified in such notice this Lease, and all rights of Lessee under this Lease, including all rights of renewal whether exercised or not, shall expire and terminate, or in the alternative or in addition to the foregoing remedy, Lessor may assert and have the benefit of any other remedy allowed herein, at law, or in equity. Upon the occurrence of an Event of Default by Lessee, and at any time thereafter, with or without notice or demand and without limiting Lessor in the exercise of any right or remedy which Lessor may have, Lessor shall be entitled to the rights and remedies set forth below: A. Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall not terminate unless Lessor gives written Notice to Lessee of its intention to terminate this Lease and Lessee shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall have the immediate right to reenter and remove all persons and property, and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Lessee, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. In the event that Lessor shall elect to so terminate this Lease, then Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default, including: 1. The equivalent of the amount of the Base Rent and Additional Rent which would be payable under this Lease by Lessee if this Lease were still in effect, less 2. The net proceeds of any reletting affected pursuant to the provisions of this Article XIV hereof after deducting all of Lessor's reasonable expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, reasonable attorneys' fees, alteration costs, and expenses of preparation of the Premises, or any portion thereof, for such reletting. Lessee shall pay such current damages in the amount determined in accordance with the terms of this Article XIV as set forth in a written statement thereof from Lessor to Lessee (hereinafter called the "Deficiency"), to Lessor in monthly installments on the days on which the rent would have been payable under this Lease if this Lease were still in effect, and Lessor shall be entitled to recover from Lessee each monthly installment of the Deficiency as the same shall arise. B. At any time after an Event of Default, whether or not Lessor shall have collected any monthly Deficiency as set forth in this Article XIV, Lessor shall be entitled to -23- recover from Lessee, and Lessee shall pay to Lessor, on demand, as and for final damages for Lessee's default, an amount equal to the then present worth of the aggregate of the Base Rent and Additional Rent and any other charges to be paid by Lessee hereunder for the unexpired portion of the term of this Lease (assuming this Lease had not been so terminated). In the computation of present worth, a discount at the rate of ten percent (10%) per annum shall be employed. If the Premises, or any portion thereof, shall be relet by Lessor for the unexpired term of this Lease, or any part thereof, before presentation of proof of such damages to any court, commission or tribunal, the amount of rent received upon such reletting shall be offset against any monies claimed pursuant to this subsection. Nothing herein contained or contained in this Article XIV shall limit or prejudice the right of Lessor to prove for and obtain, as damages, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to or less than the amount of the difference referred to above. C. Upon the occurrence of an Event of Default by Lessee, Lessor shall also have the right, with or without terminating this Lease, to reenter the Premises to remove all persons and property from the Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Lessee. If Lessor shall elect to reenter the Premises, Lessor shall not be liable for damages by reason of such reentry. D. If Lessor does not elect to terminate this Lease as provided in this Article XIV then Lessor may, from time to time, recover all rent as it becomes due under this Lease. At any time thereafter, Lessor may elect to terminate this Lease and to recover damages to which Lessor is entitled. E. In the event that Lessor should elect to terminate this Lease and to relet the Premises, it may execute any new lease in its own name. In the event that Lessor should not elect to terminate this Lease, it may re-let the Premises to a substitute tenant at the then prevailing market rate. Lessee hereunder shall have no right or authority whatsoever to collect any rent from such substitute tenant. The proceeds of any such reletting shall be applied as follows: 1. First, to the payment of any indebtedness other than rent due hereunder from Lessee to Lessor, including but not limited to storage charges or brokerage commissions owing from Lessee to Lessor as the result of such reletting; 2. Second, to the payment of the costs and expenses of reletting the Premises, including repairs which were required to be performed by Lessee and which Lessor, in its sole discretion, deems reasonably necessary and advisable and reasonable attorneys' fees incurred by Lessor in connection with the retaking of the Premises and such reletting; 3. Third, to the payment of rent and other charges due and unpaid hereunder; and 4. Fourth, to the payment of future rent and other damages payable by Lessee under this Lease. Upon any Event of Default by Lessee, Lessor agrees to use commercially reasonable efforts to mitigate the resulting damages. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -24- Lessee may contest the damage claim of Lessor, if Lessor fails to exert such mitigation effort. Lessor shall not be deemed to have terminated this Lease and the Lessee's right to possession of the leasehold or the liability of Lessee to pay rent thereafter to accrue or its liability for damages under any of the provisions hereof, unless Lessor shall have notified Lessee in writing that it has so elected to terminate this Lease. Lessee covenants that the retaking of possession by Lessor or the service by Lessor of any notice pursuant to the applicable unlawful detainer statutes of the state in which the Office Complex is located and Lessee's surrender of possession pursuant to such notice shall not (unless Lessor elects to the contrary at the time of, or at any time subsequent to the service of, such notice, and such election be evidenced by a written notice to Lessee) be deemed to be a termination of this Lease or of Lessee's right to possession thereof. All rights, options and remedies of Lessor contained in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Lessor shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law whether or not stated in this Lease. No waiver by Lessor of a breach of any of the terms, covenants or conditions of this Lease by Lessee shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition therein contained. No waiver of any default of Lessee hereunder shall be implied from any omission by Lessor to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect default other than as specified in said waiver. The consent or approval by Lessor to or of any act by Lessee requiring Lessor's consent or approval shall not be deemed to waive or render unnecessary Lessor's consent to or approval of any subsequent similar acts by Lessee. Lessee shall reimburse Lessor, upon demand, for any costs or expenses incurred by Lessor in connection with any breach or default of Lessee under this Lease, whether or not suit is commenced or judgment entered. Such costs shall include, but not be limited to: legal fees and costs incurred for the negotiation of a settlement, enforcement of rights or otherwise. Furthermore, if any action for breach of or to enforce the provisions of this Lease is commenced, the court in such action shall award to the party in whose favor a judgment is entered a reasonable sum as attorneys' fees and costs. Such attorneys' fees and costs shall be paid by the losing party in such action. Lessee shall also indemnify Lessor against and hold Lessor harmless from all costs, expenses, demands and liability incurred by Lessor if Lessor becomes or is made a party to any claim or action (a) instituted by Lessee, or by any third party against Lessee; (b) for foreclosure of any lien for labor or material furnished to or for Lessee or such other person; (c) otherwise arising out of or resulting from any act or transaction of Lessee or such other person; or (d) necessary to protect Lessor's interest under this Lease in a bankruptcy proceeding or other proceeding under Title 11 of the United States Code, as amended. Lessee shall defend Lessor against any such claim or action at Lessee's expense with counsel reasonably acceptable to Lessor or, at Lessor's election, Lessee shall reimburse Lessor for any legal fees or costs incurred by Lessor in any such claim or action. In addition, Lessee shall pay Lessor's reasonable attorneys' fees incurred in connection with Lessee's request for Lessor's consent in connection with any act which Lessee proposed to do and which requires Lessor's consent. Lessee hereby waives all claims by Lessor's reentering and taking possession of the Premises or removing and storing the property of Lessee as permitted under this Lease and will save Lessor harmless from all losses, costs or damages occasioned Lessor Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -25- thereby. No such reentry shall be considered or construed to be a forcible entry by Lessor. ARTICLE XV. SUBORDINATION: This Lease shall be subject and subordinate to any mortgage, deed of trust or ground lease now or hereafter placed upon the Premises, the Office Complex, the Property or any portion thereof by Lessor or its successors or assigns, and to amendments, replacements, renewals and extensions thereof. Lessee agrees at any time hereafter, upon demand, to execute and deliver any instruments, releases or other documents that may be reasonably required for the purpose of subjecting and subordinating this Lease, as above provided, to the lien of any such mortgage, deed of trust or ground lease. It is agreed, nevertheless, that as long as Lessee is not in default in the payment of Base Rent, Additional Rent, and other charges to be paid by Lessee under this Lease and in the performance of all covenants, agreements and conditions to be performed by Lessee under this Lease, then neither Lessee's right to quiet enjoyment under this Lease, nor the right of Lessee to continue to occupy the Premises and to conduct its business thereon, in accordance with the terms of this Lease as against any lessor, lessee, mortgagee, trustee or their successors or assigns shall be disturbed. The above subordination shall be effective without the necessity of the execution and delivery of any further instruments on the part of Lessee to effectuate such subordination. Notwithstanding anything hereinabove contained in this Article XV, in the event the holder of any mortgage, deed of trust or ground lease shall at any time elect to have this Lease constitute a prior and superior lien to its mortgage, deed of trust or ground lease, then, and in such event, upon any such holder or landlord notifying Lessee to that effect in writing, this Lease shall be deemed prior and superior in lien to such mortgage, deed of trust or ground lease, whether this Lease is dated prior to or subsequent to the date of such mortgage, deed of trust or ground lease, and Lessee shall execute such attornment agreement as may be reasonably requested by said holder or Lessor. Lessee agrees, provided the mortgagee, ground lessor or trust deed holder under any mortgage, ground lease, deed of trust or other security instrument shall have notified Lessee in writing (by the way of a notice of assignment of lease or otherwise) of its address, that Lessee shall give such mortgagee, ground lessor, trust deed holder or other secured party ("Mortgagee"), simultaneously with delivery of notice to Lessor, by registered or certified mail, a copy of any such notice of default served upon Lessor. Lessee further agrees that said Mortgagee shall have the right to cure any alleged default during the same period that Lessor has to cure such default. On or before the commencement of the term of this Lease, Lessor agrees to provide an express "non-disturbance" agreement from the holder of any mortgage or deed of trust in place as of such time. ARTICLE XVI. MISCELLANEOUS: A. Lessee represents that Lessee has dealt directly with and only with Lee & Associates (Craig Coppola and Bill Blake) , as broker, in connection with this Lease and that insofar as Lessee knows, no other broker negotiated or participated in negotiations of this Lease or submitted or showed the Premises or is entitled to any commission in connection therewith. Lessor and Lessee agree that no broker shall be entitled to any commission in connection with any renewal of the term of this Lease. Lessor shall pay the commission, if any, owed to the "broker" named above for any expansion of the Premises. B. Lessee agrees from time to time, upon not less than ten (10) business days prior written request by Lessor, to deliver to Lessor a statement in writing certifying (i) this Lease is Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -26- unmodified and in full force and effect (or if there have been modifications that the Lease as modified is in full force and effect and stating the modifications); (ii) the dates to which the rent and other charges have been paid; (iii) Lessor is not in default in any provision of this Lease or, if in default, the nature thereof specified in detail; (iv) the amount of monthly rental currently payable by Lessee; (v) the amount of any prepaid rent, and (vi) such other factual matters as may be reasonably requested by Lessor or any Mortgagee or prospective purchaser of the Office Complex. If Lessee does not deliver such statement to Lessor within such ten (10) day period, Lessor and any prospective purchaser or encumbrancer of the Premises or the Office Complex may conclusively presume and rely upon the following facts: (i) that the terms and provisions of this Lease have not been changed except as otherwise represented by Lessor; (ii) that this Lease has not been canceled or terminated and is in full force and effect, except as otherwise represented by Lessor; (iii) that the current amounts of the Base Rent and security deposit are as represented by Lessor and that any charges made against the security deposit are uncontested and valid; (iv) that there have been no subleases or assignments of the Lease; (v) that not more than one month's Base Rent or other charges have been paid in advance; and (vi) that Lessor is not in default under the Lease. In such event, Lessee shall be estopped from denying the truth of such facts. C. All notices, demands and requests shall be in writing, and shall be effectively served by forwarding such notice, demand or request by certified or registered mail, postage prepaid, or by commercial overnight courier service addressed as follows: (i) If addressed to Lessee: JDA Software Group, Inc. 11811 North Tatum Boulevard Suite 2000 Phoenix, Arizona 85018-1626 Attn: Kristen L. Magnuson, CFO with a copy to: JDA Software Group, Inc. 11811 North Tatum Boulevard Suite 2000 Phoenix, Arizona 85018-1626 Attn: Karen L. Nagel, General Counsel (ii) If addressed to Lessor: Opus West Corporation 2415 East Camelback Road Suite 800 Phoenix, Arizona 85016 Attn: Thomas W. Roberts, President with a copy to: Opus U.S. Corporation 2415 East Camelback Road Suite 800 Phoenix, Arizona 85016 Attn: Daniel T. Haug, Esq. and with a copy to: Opus West Management Corporation 2415 East Camelback Road Suite 840 Phoenix, Arizona 85016 Attn: Property Manager Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -27- and with a copy to: Gallagher & Kennedy, P.A. 2600 North Central Avenue Phoenix, Arizona 85004-3020 Attn: Mr. Gregory L. Mast or at such other addresses as Lessor and Lessee may hereafter designate by written notice. The effective date of all notices shall be the time of mailing such notice or the date of delivery to a commercial overnight courier service. D. All rights and remedies of Lessor under this Lease or that may be provided by law may be executed by Lessor in its own name, individually, or in the name of its agent, and all legal proceedings for the enforcement of any such rights or remedies, including those set forth in Article XIV, may be commenced and prosecuted to final judgment and execution by Lessor in its own name or in the name of its agent. E. Lessor covenants and agrees that Lessee, upon paying the Base Rent, Additional Rent and other charges herein provided for and observing and keeping the covenants, agreements and conditions of this Lease on its part to be kept and performed, shall lawfully and quietly hold, occupy and enjoy the Premises during the term of this Lease. Time is of the essence of this Lease and each and every provision contained herein, and any extension of time granted by Lessor to Lessee for the performance of any obligation of Lessee under this Lease shall not be considered an extension of time for the performance of any subsequent obligation of Lessee under this Lease. F. The covenants and agreements herein contained shall bind and inure to the benefit of Lessor and its successors and assigns and Lessee and its permitted successors and assigns. All obligations of each party constituting Lessee hereunder shall be the joint and several obligations of each such party. G. If any term or provision of this Lease shall to any extent be held invalid or unenforceable, the remaining terms and provisions of this Lease shall not be affected thereby, but each term and provision of this Lease shall be valid and enforced to the fullest extent permitted by law. This Lease shall be construed and enforced in accordance with the laws of the state in which the Premises are located. H. Lessee covenants not to do or suffer any waste or damage or disfigurement or injury to the Premises or the Office Complex and Lessee further covenants that it will not vacate or abandon the Premises during the term of this Lease. I. The term "Lessor" as used in this Lease so far as covenants or obligations on the part of Lessor are concerned shall be limited to mean and include only the owner or owners of the Office Complex at the time in question, and in the event of any transfer or transfers or conveyances and an assumption by the assignor or successor of the obligation of "Lessor" herein, the then grantor shall be automatically freed and released from all personal liability accruing from and after the date of such transfer or conveyance as respects the performance of any covenant or obligation on the part of Lessor contained in this Lease to be performed, it being intended hereby that the covenants and obligations contained in this Lease on the part of Lessor shall be binding on the Lessor, its successors and assigns, only during and in respect to their respective successive periods of ownership. In the event of a sale or conveyance by Lessor of the Office Complex or any part of the Office Complex, the same shall operate to release Lessor from any future liability upon any of the covenants or conditions herein contained and in such event Lessee agrees to look solely to the responsibility of the successor in Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -28- interest of Lessor in and to this Lease. This Lease shall not be affected by any such sale or conveyance, and Lessee agrees to attorn to the purchaser or grantee, which purchaser or grantee shall be personally obligated on this Lease only so long as it is the owner of Lessor's interest in and to this Lease. J. The marginal or topical headings of the several Articles are for convenience only and do not define, limit or construe the contents of said Articles. K. All preliminary negotiations are merged into and incorporated in this Lease, except for written collateral agreements executed contemporaneously herewith. L. This Lease can only be modified or amended by an agreement in writing signed by the parties hereto. No receipt of money by Lessor from Lessee or any other person after termination of this Lease or after the service of any notice or after the commencement of any suit, or after final judgment for possession of the Premises, shall reinstate, continue or extend the term of this Lease or affect any such notice, demand or suit, or imply consent for any action for which Lessor's consent is required, unless specifically agreed to in writing by Lessor. Any amounts received by Lessor may be allocated to any specific amounts due from Lessee to Lessor as Lessor determines. M. Lessor shall have the right to close any portion of the building area or land area to the extent as may, in Lessor's reasonable opinion, be necessary to prevent a dedication thereof or the accrual of any rights to any person or the public therein. Lessor shall at all times have full control, management and direction of the Office Complex, subject to the rights of Lessee in the Premises, and subject to the approval of Lessee, which approval shall not be unreasonably withheld, Lessor reserves the right at any time and from time to time to reduce, increase, enclose or otherwise change the size, number and location of buildings, layout and nature of the Office Complex, to construct additional buildings and additions to any building, and to create additional rentable areas through use and/or enclosure of common areas, or otherwise, and to place signs on the Office Complex. No implied easements are granted by this Lease. N. Lessee shall permit Lessor (or its designees), upon not less than twenty-four (24) hours advance notice, to erect, use, maintain, replace and repair pipes, cables, conduits, plumbing, vents, and telephone, electric and other wires or other items, in, to and through the Premises, as and to the extent that Lessor may now or hereafter deem necessary or appropriate for the proper operation and maintenance of the Office Complex, but without material disruption to Lessee's use and enjoyment of the Premises. O. Employees or agents of Lessor have no authority to make or agree to make a lease or other agreement or undertaking in connection herewith. The submission of this document for examination does not constitute an offer to lease, or a reservation of, or option for, the Premises. This document becomes effective and binding only upon the execution and delivery hereof by the proper officers of Lessor and by Lessee. Lessee confirms that Lessor and its agents have made no representations or promises with respect to the Premises or the making of or entry into this Lease except as in this Lease expressly set forth, and Lessee agrees that no claim or liability shall be asserted by Lessee against Lessor for, and Lessor shall not be liable by reason of, breach of any representations or promises not expressly stated in this Lease. This Lease, except for the Building Rules and Regulations, in respect to which subparagraph P of this Article shall prevail, can be modified or altered only by agreement in writing between Lessor and Lessee, and no act or omission of any employee or agent of Lessor shall alter, change or modify any of the provisions hereof. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -29- P. Lessee shall perform, observe and comply with the Building Rules and Regulations of the Office Complex as set forth on Exhibit B attached hereto and by this reference incorporated herein, with respect to the safety, care and cleanliness of the Premises and the Office Complex, and the preservation of good order thereon, and, upon written notice thereof to Lessee, Lessee shall perform, observe and comply with any changes, amendments or additions thereto as from time to time shall be established and deemed advisable by Lessor for tenants of the Office Complex. Lessor shall not be liable to Lessee for any failure of any other tenant or tenants of the Office Complex to comply with such Building Rules and Regulations. Lessor shall enforce such Building Rules and Regulations in a reasonable, uniform and nondiscriminatory manner. Q. Neither party shall use the Premises or permit (which, in the case of Lessor, shall require knowledge and consent) anything to be done in or about the Premises which will, in any way, conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Lessee shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances and governmental rules and regulations now in force or which may hereafter be in force, including, without limitation, those pertaining to indoor air quality, and with the requirements of any fire insurance underwriters or other similar body now or hereafter constituted relating to or affecting the condition, use or occupancy of the Premises. Lessee shall use the Premises and comply with any recorded covenants, conditions, and restrictions affecting the Premises and the Office Complex as of the commencement of the Lease or which are recorded during the lease term. R. Neither party shall (either with or without negligence) cause or permit (which, in the case of Lessor, shall require knowledge and consent) the escape, disposal or release of any biologically or chemically active or other hazardous substances or materials. Lessee shall not allow the storage or use of such substances or materials in any manner not sanctioned by law and by the highest standards prevailing in the industry for the storage and use of such substances or materials, nor allow to be brought into the Office Complex any such materials or substances except to use in the ordinary course of Lessee's business, and then only after written notice is given to Lessor of the identity of such substances or materials. Without limitation, hazardous substances and materials shall include those described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and the regulations adopted under these acts. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials, then the reasonable costs thereof shall be reimbursed by Lessee to Lessor upon demand as additional charges if such requirement applies to the Premises. In addition, Lessee shall execute affidavits, representations and the like from time to time at Lessor's request concerning Lessee's best knowledge and belief regarding the presence of hazardous substances or materials on the Premises. In all events, Lessee shall indemnify Lessor in the manner elsewhere provided in this Lease from any release of hazardous materials on the Premises occurring while Lessee is in possession, or elsewhere if caused by Lessee or persons acting under Lessee. The within covenants shall survive the expiration or earlier termination of the term of this Lease. S. All obligations of Lessee hereunder not fully performed as of the expiration or earlier termination of the term of this Lease shall survive the expiration or earlier termination of the term hereof, including, without limitation, all payment obligations with respect to Operating Expenses and Real Estate Taxes and all obligations concerning the condition of the Premises. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -30- T. Any claim which Lessee may have against Lessor for default in performance of any of the obligations herein contained to be kept and performed by Lessor shall be deemed waived unless such claim is asserted by written notice thereof to Lessor within thirty (30) days of commencement of the alleged default or of accrual of the cause of action. Furthermore, Lessee agrees to look solely to Lessor's interest in the Office Complex, including the rents therefrom, for the recovery of any judgment from Lessor, it being agreed that Lessor, or if Lessor is a partnership, its partners whether general or limited, or if Lessor is a corporation, its directors, officers or shareholders, or if Lessor is a limited liability company, its members, shall never be_ personally liable for any such judgment. U. Lessee shall furnish to Lessor promptly upon demand, a corporate resolution, proof of due authorization of partners, or other appropriate documentation reasonably requested by Lessor evidencing the due authorization of Lessee to enter into this Lease. V. This Lease shall not be deemed or construed to create or establish any relationship or partnership or joint venture or similar relationship or arrangement between Lessor and Lessee hereunder. W. Lessee shall in all respects comply with the Americans With Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.), as the same may be amended from time to time (as amended, the "ADA"), and Lessee agrees to indemnify and save Lessor and its managing agent harmless against and from any and all claims, loss, damage and expense by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from any failure or alleged failure of Lessee to comply with the ADA or arising from any claim made under the ADA in connection with the Premises, and from and against all costs, reasonable attorneys' fees, expenses and liabilities incurred in or about any such claim or action or proceeding brought thereon; in case any action or proceeding be brought against Lessor or its managing agent by reason of any such claim. Lessee, upon notice from Lessor, covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to Lessor. X. Lessee shall not place, or permit to be placed or maintained, on any exterior door, wall or window of the Premises any sign, awning or canopy, or advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door, or that can be seen through the glass, of the Premises except as specifically approved in writing by Lessor. Lessee further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or thing as may be approved, in good condition and repair at all times. Lessee agrees at Lessee's sole cost, that any Lessee sign will be maintained in strict conformance with Lessor's sign criteria, if any, as to design, material, color, location, size, letter style, and method of installation. ARTICLE XVII. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all taxes assessed or levied upon its occupancy of the Premises, or upon the trade fixtures, furnishings, equipment and all other personal property of Lessee located in the Premises, and when possible. Lessee shall cause such trade fixtures, furnishings, equipment and other personal property to be assessed and billed separately from the property of Lessor. In the event any or all of Lessee's trade fixtures, furnishings, equipment or other personal property, or Lessee's occupancy of the Premises, shall be assessed and taxed with the property of Lessor, Lessee shall pay to Lessor its share of such taxes within ten (10) days after delivery to Lessee by Lessor of a statement in writing setting forth the amount of such taxes applicable to Lessee's personal property. ARTICLE XVIII. OTHER PROVISIONS: The following are made a part hereof, with the same force and effect as if specifically set forth herein: Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -31- A. Site Plan - Exhibit A. A-l. Floor Plan - Exhibit A-l A-2. Phase II Site Plan - Exhibit A-2 B. Building Rules and Regulations - Exhibit B. C. Rider To Lease - Exhibit C. D. [RESERVED] E. Total Project Cost Illustrative Calculation - Exhibit E. F. Base Building Plans - Exhibit F IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written. LESSOR: LESSEE: OPUS WEST CORPORATION, a JDA SOFTWARE GROUP, INC., a Minnesota corporation Delaware corporation By /s/ Thomas W. Roberts By /s/ JM PAD -------------------------------- --------------------------- Thomas W. Roberts Name FREDERACK M. PATIS Its President Print _____________________ Its: Co-Chairman Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 -32- EXHIBIT A SITE PLAN [PHASE ONE SITE PLAN] Phase One 10.13 acres net 136,000 sf rentable 816 spaces(6.0:1000 rent.) [DFD LOGO] Northsight Office [OPUS LOGO] DFD Architecture Scottsdale, Arizona 4201 N, 24th Street, Suite 100 Phoenix Arizona 85016 Phone (602) 957-4758 FAX (602) 957-9603 Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit A (Page 1 of 1) EXHIBIT A-1 FLOOR PLAN [FIRST FLOOR PLAN] [OPUS LOGO] FIRST FLOOR OPUS Architects & Engineers, Inc,. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit A-1 (Page 1 of 3) EXHIBIT A-1 FLOOR PLAN [SECOND FLOOR PLAN] [OPUS LOGO] SECOND FLOOR OPUS Architects & Engineers, Inc,. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit A-1 (Page 2 of 3) EXHIBIT A-1 FLOOR PLAN [THIRD FLOOR PLAN] [OPUS LOGO] THIRD FLOOR OPUS Architects & Engineers, Inc,. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit A-1 (Page 3 of 3) EXHIBIT A-2 PHASE II SITE PLAN [PHASE TWO SITE PLAN] Phase Two(A) 15.0 acres net 272,000 af rentable 1,632 spaces(6.0:1000 rent.) Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit A-2 (Page 1 of 1) EXHIBIT B BUILDINGS RULES AND REGULATIONS 1. Any sign, lettering, picture, notice or advertisement installed on or in any part of the Premises and visible from the exterior of the Office Complex, or visible from the exterior of the Premises, shall be installed at Lessee's sole cost and expense, and in such manner, character and style as Lessor may approve in writing. In the event of a violation of the foregoing by Lessee, Lessor may remove the same without any liability and may charge the expense incurred by such removal to Lessee. 2. No awning or other projection shall be attached to the outside walls of the Office Complex. No curtains, blinds, shades or screens visible from the exterior of the Office Complex or visible from the exterior of the Premises shall be attached to or hung in, or used in connection with, any window or door of the Premises without the prior written consent of Lessor. Such curtains, blinds, shades, screens or other fixtures must be of a quality, type, design and color, and attached in the manner, approved by Lessor. 3. Lessee and its servants, employees, customers, invitees and guests shall not obstruct sidewalks, entrances, passages, corridors, vestibules, halls, elevators or stairways in and about the Office Complex which are used in common with other tenants and their servants, employees, customers, guests and invitees and which are not a part of the Premises of Lessee. Lessee shall not place objects against glass partitions or doors or windows which would be unsightly from the Office Complex corridors or from the exterior of the Office Complex and will promptly remove any such objects upon notice from Lessor. 4. Lessee shall not make excessive noises, cause disturbances or vibrations or use or operate any electrical or mechanical devises that emit excessive sound or other waves or disturbances, and Lessee shall not create obnoxious odors (including cigarette, cigar and pipe smoke), any of which may be offensive to the other tenants and occupants of the Office Complex, or that would interfere with the operation of any device, equipment, radio, television broadcasting or reception from or within the Office Complex or elsewhere and shall not place or install any projections, antennas, aerials or similar devices inside or outside of the Premises or on the Office Complex. 5. Lessee shall not waste electricity, water or air conditioning and shall cooperate fully with Lessor to insure the most effective operation of the Office Complex's heating and air conditioning systems and shall refrain from attempting to adjust any controls other than unlocked room thermostats, if any, installed for Lessee's use. Lessee shall keep corridor doors closed. 6. Lessee assumes full responsibility for protecting its space from theft, robbery and pilferage, which includes keeping doors locked and other means of entry to the Premises closed and secured after normal business hours. 7. No person or contractor not employed by Lessor shall be used to perform janitorial work, window washing, cleaning, maintenance, repair or similar work in the Premises without the written consent of Lessor. 8. In no event shall Lessee bring into the Office Complex inflammables, such as gasoline, kerosene, naphtha and benzine, or explosives or any other article of intrinsically dangerous nature. If, by reason of the failure of Lessee to comply with the provisions of this subparagraph, any insurance premium for all or Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit B (Page 1 of 4) any part of the Office Complex shall at any time be increased, Lessee shall make immediate payment of the whole of the increased insurance premium, without waiver of any of Lessor's other rights at law or in equity for Lessee's breach of this Lease. 9. Lessee shall comply with all applicable federal, state and municipal laws, ordinances and regulations and building rules and shall not directly or indirectly make any use of the Premises which may be prohibited by any of the foregoing or which may be dangerous to persons or property or may increase the cost of insurance or require additional insurance coverage. 10. Lessor shall have the right to prohibit any advertising by Lessee which in Lessor's reasonable opinion tends to impair the reputation of the Office Complex or its desirability as an office complex for general office use, and upon written notice from Lessor, Lessee shall refrain from or discontinue such advertising. 11. The Premises shall not be used for lodging, sleeping or for any immoral or illegal purpose. 12. Lessee and Lessee's servants, employees, agents, visitors and licensees shall observe faithfully and comply strictly with the foregoing rules and regulations and such other and further appropriate rules and regulations as Lessor or Lessor's agent may from time to time adopt. Reasonable notice of any additional rules and regulations shall be given in such manner as Lessor may reasonably elect. 13. Unless expressly permitted by Lessor, no additional locks or similar devices shall be attached to any door or window and no keys other than those provided by Lessor shall be made for any door. If more than two keys for one lock are desired by Lessee, Lessor may provide the same upon payment by Lessee. Upon termination of this Lease or of Lessee's possession, Lessee shall surrender all keys of the Premises and shall explain to Lessor all combination locks on safes, cabinets and vaults. 14. Any carpeting cemented down by Lessee shall be installed with a releasable adhesive. In the event of a violation of the foregoing by Lessee, Lessor may charge the expense incurred by such removal to Lessee. 15. The water and wash closets, drinking fountains and other plumbing fixtures shall not be used for any purpose other than those for which they were constructed, and no sweepings, rubbish, rags, coffee grounds or other substances shall be thrown therein. All damages resulting from any misuse of the fixtures shall be borne by the lessee who, or whose servants, employees, agents, visitors or licensees, shall have caused the same. No person shall waste water by interfering or tampering with the faucets or otherwise. 16. No electrical circuit for any purpose shall be brought into the Premises without Lessor's written permission specifying the manner in which same may be done. 17. No dog (other than seeing eye dogs) or other animal, shall be allowed in offices, halls, corridors or elsewhere in the Office Complex. No bicycles or other vehicles shall be allowed in the Buildings of the Office Complex. 18. Lessee shall not throw anything out of the door or windows or down any passageways or elevator shafts. 19. All loading, unloading, receiving or delivery of goods, supplies or disposal of garbage or refuse shall be made only through entryways and freight elevators provided for such purposes and indicated by Lessor. Lessee shall be responsible for any damage to the Office Complex or the property of its employees or Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit B (Page 2 of 4) others and injuries sustained by any person whomsoever resulting from the use or moving of such articles in or out of the Premises, and shall make all repairs and improvements required by Lessor or governmental authorities in connection with the use of such articles. 20. All safes, equipment or other heavy articles shall be carried in or out of the Premises only at such time and in such manner as shall be prescribed in writing by Lessor, and Lessor shall in all cases have the right to specify the proper position of any such safe, equipment or other heavy article, which shall only be used by Lessee in a manner which will not interfere with or cause damage to the Premises or the Office Complex or to the other tenants or occupants of the Office Complex. Lessee shall be responsible for any damage to the Office Complex or the property of its employees or others and injuries sustained by any person whomsoever resulting from the use or moving of such articles in or out of the Premises, and shall make all repairs and improvements required by Lessor or governmental authorities in connection with the use or moving of such articles. 21. Canvassing, soliciting and peddling in the Office Complex is prohibited and all tenants of the Office Complex shall cooperate to prevent the same. 22. Vending machines shall not be installed without permission of Lessor; provided, however, Lessor consents to the installation of vending machines in the pantry or kitchen area of the Premises for the dispensing of soda and other similar drinks to Lessee's employees and guests. 23. Wherever in these Building Rules and Regulations the word "Lessee" occurs, it is understood and agreed that it shall mean Lessee and Lessee's associates, agents, clerks, servants and visitors. Wherever the word "Lessor" occurs, it is understood and agreed that it shall mean Lessor and Lessor's assigns, agents, clerks, servants and visitors. 24. Lessor shall have the right, upon twenty-four (24) hours advance notice, to enter upon the Premises at all reasonable hours for the purpose of inspecting the same, provided that Lessor shall not disrupt materially, Lessee's use and enjoyment of the Premises as a result. 25. Lessee and its servants, employees, customers, invitees and guests shall, when using the common parking facilities, if any, in and around the Office Complex, observe and obey all signs regarding fire lanes and no parking zones, and when parking, shall always park between the designated lines. Lessor reserves the right to tow away, at the expense of the owner, any vehicle which is improperly parked or parked in a no parking zone. All vehicles shall be parked at the sole risk of the owner, and Lessor assumes no responsibility for any damage to or loss of vehicles. No vehicles shall be parked overnight for more than three (3) consecutive days). 26. At all times Lessee shall have access to the Premises, however, the Office Complex shall be in the control of Lessor's employee in charge and (a) persons may enter the Office Complex only in accordance with Lessor's regulations, (b) persons entering or departing from the Office Complex may be questioned as to their business in the Office Complex, and the right is reserved to require the use of an identification card or other access device and the registering of such persons as to the hour of entry and departure, nature of visit, and other information deemed necessary for the protection of the Office Complex, and (c) all entries into and departures from the Office Complex will take place through one or more entrances as Lessor shall from time to time designate; provided, however, anything herein to the contrary notwithstanding, Lessor shall not be liable for any lack of security in respect to Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit B (Page 3 of 4) the Office Complex whatsoever. Lessor will normally not enforce clauses (a), (b) and (c) above from 7:00 a.m., to 6:00 p.m., Monday through Friday, and from 8:00 a.m. to 1:00 p.m. on Saturdays, but it reserves the right to do so or not to do so at any time at its sole discretion. In case of invasion, mob, riot, public excitement or other commotion, Lessor reserves the right to prevent access to the Office Complex during the continuance of the same by closing the doors or otherwise, for the safety of the tenants or the protection of the Office Complex and the property therein. Lessor shall in no case be liable for damages for any error or other action taken with regard to the admission to or exclusion from the Office Complex of any person. 27. All entrance doors to the Premises shall be locked when the Premises are not in use. All corridor doors shall also be closed during times when the air conditioning equipment in the Office Complex is operating so as not to dissipate the effectiveness of the system or place an overload thereon. 28. Lessor reserves the right at any time and from time to time to rescind, alter or waive, in whole or in part, any of these Building Rules and Regulations when it is deemed necessary, desirable or proper, in Lessor's judgment, for its best interest or for the best interest of the tenants of the Office Complex. 29. Smoking shall be permitted only in the smoking areas located outside of the building, as designated and redesignated from time to time by Lessor, and Lessee and its servants, employees, customers, invitees and guests shall not smoke anywhere at the Office Complex (other than the smoking areas designated by Lessor), including without limitation Lessee's Premises and the sidewalks, entrances, passages, corridors, halls, elevators and stairways of the Office Complex. Initials: Lessor_______________ Lessee_______________ Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit B (Page 4 of 4) EXHIBIT C RIDER TO OFFICE LEASE SCOTTSDALE NORTHSIGHT/JDA SOFTWARE GROUP, INC. ARTICLE XX. LESSOR'S REPRESENTATIONS: Lessor represents and warrants to Lessee as follows: (a) Upon commencement of the term of this Lease, the Premises, Building and Office Complex shall be constructed substantially in accordance with the plans and specifications therefor, as described on Exhibit "F" hereto, or as otherwise approved by Lessee. Such plans and specifications will comply with all codes, ordinances, regulations and laws (including, without limitation, the ADA) governing the construction of the Premises, Building and Office Complex, as existing, enforced and interpreted as of the date of the issuance of the applicable building or construction permit. (b) Lessor will not incorporate into construction of the Premises any "hazardous materials" (as contemplated in Article XVI.R), the use of which is prohibited in construction of projects of the nature of the Building under applicable state and federal laws, rules and regulations in effect and as interpreted and enforced at the time construction is performed. Lessor will not incorporate into construction of the Premises any materials which are generally known to the construction industry at the time construction is performed to contain hazardous material in a manner contrary to applicable federal and state laws, rules and regulations and material safety data sheets. Upon request of Lessee, Lessor shall provide Lessee with a copy of the Phase I Environmental Assessment for the Building and the Property on which it is located. (c) Subject to force majeure and Lessee's obligation to pay Rent, Lessor shall cause the Office Complex to be managed, as a "Class A" project (as that characterization is known and defined in the regional area of Scottsdale, Arizona in which the Office Complex is located) and in a cost effective manner. (d) The Building and Premises shall be constructed to maintain an airflow and air quality consistent with the ASHREI standards applicable to a "Class A" office building (as recognized in the greater metropolitan Scottsdale area as of the date of this Lease), as such standards exist and are applied as of the date of issuance of the construction permits for the Building. (e) Lessor shall make no substantial changes to the site plan of the Office Complex (as attached as Exhibit "A", hereto), without the approval of Lessee, which approval shall not be unreasonably withheld. ARTICLE XXI. DETERMINATION OF AREA OF PREMISES. Lessee shall lease from Lessor the entire second (2nd) and third (3rd) floors of the Building, which as of the date hereof, the parties agree to be approximately 95,000 rentable square feet as the "Premises". By notice to Lessor, given prior to the date of the permit (to be issued by the City of Scottsdale) to construct the Building (such date herein called the "Permit Date"), Lessee may designate the Premises to include an additional area located on the first (1st) floor of the Building, but, as a result of, the expanded "Premises" shall not exceed 115,000 rentable square feet in area. ARTICLE XXII. LOCK BOX: Lessor may from time to time designate a lock box collection agent for the collection of rents or other charges due Lessor. In such event, the payment made by Lessee to the lock box shall be the date of receipt by the lock box collection agent of such payment (or the date of collection of any such Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 1 of 14) sum if payment is made in the form of a negotiable instrument thereafter dishonored upon presentment); however, for the purpose of this Lease, no such payment or collection shall be deemed a waiver by Lessor of any breach by Lessee of any term, covenant or condition of this Lease nor a waiver of any of Lessor's rights or remedies and any payment of amounts other than that deemed due and proper by Lessor shall not prejudice Lessor in any manner nor constitute a waiver and Lessor shall hereby be authorized to retain the proceeds of any payments by Lessee, whether restrictively endorsed or otherwise, and apply same to the amounts due and payable from Lessee under this Lease without waiver. ARTICLE XXIII. PRIOR PROPOSALS: All prior proposals in respect to this Lease are hereby terminated. ARTICLE XXIV. USE: Lessee shall use the Premises only for general office purposes. Notwithstanding anything to the contrary contained in this Lease, during the term of this Lease and any extensions or renewals, Lessee shall not use or permit any portion of the Premises to be used for (i) the operation of a title company or title agency or for providing services typically offered by escrow agents in connection with real estate transactions, or (ii) the discount or retail sale and/or brokerage of securities and/or commodities, or (iii) the operation of a bank or the provision of trust services (collectively, the "Restricted Uses"). Lessee shall comply with the terms of any encumbrances, covenants, conditions, restrictions or other matters now of record or hereafter recorded against the Office Complex. ARTICLE XXV. CONFIDENTIALITY: Lessee agrees to keep this Lease and the terms hereof in confidence, and not to publish or disclose, in whole or in part, the same without Lessor's prior written consent, which consent may be withheld in Lessor's sole discretion. This covenant of confidentiality shall include, without limitation, all information disclosed by Lessor pursuant to the "open book" understanding regarding the costs of the Total Project Costs. Accordingly, all such information and disclosures shall be limited to dissemination only among the executive officers and the construction manager of Lessee and each such person shall be informed of this confidentiality covenant. ARTICLE XXVI. DEFAULT OF LESSOR: In the event of any alleged breach by Lessor of its covenants contained in this Lease, Lessee shall have available all rights and remedies provided at law or in equity, subject to the terms and conditions of this Lease; provided, however, Lessee may not exercise any such right or remedy unless Lessee has notified Lessor and any party to whom notice is required to be given pursuant to Article XV by notice of such alleged default, and the notified party or parties have not cured such default within the thirty (30) day period subsequent to receipt of such notice by Lessee or, in the event such alleged default is of such a nature that it cannot reasonably be cured within such thirty-day period, such notified party or parties have failed to cure such alleged default with all due diligence. ARTICLE XXVII. FINANCIAL STATEMENTS: Lessee agrees to provide to Lessor upon Lessee's execution of this Lease and prior to Lessor executing same, and within thirty (30) days after Lessor's request therefor at any time during the term of this Lease, complete, accurate financial statements, currently available, prepared according to generally accepted accounting principles consistently applied, certified by Lessee's chief financial officer as an officer of Lessee that same are a true, complete and correct statement of the financial condition of Lessee as of the date of such financial statements. ARTICLE XXVIII. COMMENCEMENT DATE MEMORANDUM; MEASUREMENT OF RENTABLE AREA: Lessee acknowledges that the Office Complex is not constructed as of the date of this Lease and that the Base Rent, Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 2 of 14) Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses, the Tenant Improvement Allowance, and certain other items set forth in this Lease will be calculated based on the useable area of the Premises, the rentable area of the Premises, and the rentable area of the Office Complex. Further, Lessee has certain rights to modify the total rentable area of the Premises after execution of this Lease. Promptly after the commencement of the ten-year term of this Lease, a memorandum (the "Commencement Date Memorandum") shall be prepared by Lessor and executed by Lessor and Lessee. The Commencement Date Memorandum shall set forth the date on which the term of this Lease commenced, the expiration date of the initial ten-year term, the rentable area of the Premises, and the rentable area of the Office Complex (all as certified by Lessor's architect), the Base Rent, and the percentage initially to be used to calculate Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses. Lessor's architect shall calculate and determine the rentable area of the Premises and the Office Complex in accordance with ANSI/BOMA Z65.1 approved June 7, 1996. Such calculation and determination may be verified by Lessee within thirty (30) days of receipt. ARTICLE XXIX. FUTURE DEVELOPMENT: Lessor and Lessee understand and agree that the Office Complex as initially constructed is the first phase ("Phase I") of a proposed two-phase integrated commercial real estate development (the second phase is hereinafter referred to as "Phase II"). Phase II may be constructed by Lessor, if at all, only upon the approval of Lessee, which approval may be conditioned upon adequate assurance regarding the staging of construction and the provision of parking during the construction. Upon substantial completion of Phase II, the Office Complex for purposes of this Lease may, at Lessor's option, include all of the land within Phase II and all easement areas appurtenant thereto, and all buildings, improvements and personal property of Lessor used in connection with the operation or maintenance thereof located therein and thereon and the appurtenant parking facilities. Upon substantial completion of Phase II and election of Lessor, the Property shall thereafter be deemed to mean the land (and all easement areas appurtenant thereto) on which both Phase I and Phase II are located; and the Office Complex as that term is used herein shall be deemed to mean all buildings and improvements and personal property of Lessor used in connection with the operation or maintenance thereof and appurtenant parking facilities located on Phase I and Phase II. If Lessor so elects, upon substantial completion of Phase II and redefinition of the terms "Property" and "Office Complex" as hereinabove described, the percentage set forth as "Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses" in Article II.D herein, shall be recomputed on the basis of the rentable area of the Premises compared to the rentable area of the Office Complex (as expanded) subject to adjustment on the basis of ninety-five percent (95%) of the total average rentable area of the Office Complex (as expanded) pursuant to said Article II.E. In no event shall this Article be deemed to require Lessor to develop or construct Phase II (nor require Lessor to combine Phase I and Phase II as hereinabove allowed) or any addition or modification to the Office Complex (as originally defined herein or otherwise), nor is this intended in any manner to be a representation or warranty that Phase II will at any time be constructed or developed by Lessor. Subject to the approval of Lessee, Lessor shall retain the right to increase or decrease the size of Phase I or Phase II and make other changes to the Property and the legal description of the Office Complex in its reasonable discretion. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 3 of 14) However, upon execution by Lessee of a lease agreement for not less than sixty-five percent (65%) of the proposed building comprising Phase II, then Lessor, or the developer chosen by Lessee, shall then commence and diligently pursue the completion of construction of Phase II. The construction of Phase II by Lessor shall be performed: (i) pursuant to a construction plan and schedule which Lessor shall review with Lessee; and (ii) by Lessor using commercially reasonable efforts to minimize the disruption to Lessee and its utilization of the Premises. In the event the developer of Phase II (and the landlord to Lessee for the sixty-five percent (65%) of the proposed Phase II building) is not Lessor, then nonetheless, Lessor shall cooperate with Lessee (and its Phase II developer) in such efforts, and shall not unreasonably withhold its consent to such agreements (including, without limitation, a land exchange agreement to allow the Phase II building site to be acquired by Lessee or its developer), plats, easements, shared operating expense arrangements and parking improvements, which are of a nature to accommodate the proposed development of Phase II, as contemplated on the Phase II Site Plan attached hereto as Exhibit "A-2". In any event, if Lessor is not the developer of Phase II, then it shall not be required to pay for any improvements. Nothing in this Lease shall be construed to require Lessee to engage Lessor to acquire, develop or construct Phase II, or to otherwise grant to Lessor any exclusive rights thereto. ARTICLE XXX. EXPANSION RIGHT: Subject to the terms and conditions set forth in this Article XXX, Lessor hereby grants to Lessee the right ("Offer Right") to be offered by Lessor the opportunity to lease not less than 24,000 rentable square feet of space in the remaining rentable areas of the Building (or such lesser area, if Lessee is then leasing, as the Premises, an area which results in less than 24,000 rentable square feet being available in the Building) as and when such portions become available between the sixtieth (60th) and the seventy-second (72nd) calendar month of the term of this Lease (the "Offer Right Period"). As a condition to this Offer Right, Lessee shall be required to give Lessor a notice of Lessee's exercise, during the forty-seventy (47th) month of the term of this Lease and of Lessee's waiver of its early termination rights under Article XXXVIII. Within thirty (30) days of receipt of Lessee's exercise notice, Lessor shall provide Lessee a description of the portions of the Building which shall be available during the Offer Right Period and a form of lease, or an amendment to this Lease, in regard to such portions. The Base Rent for the additional portions shall be ninety-five percent (95%) of the then Fair Market Value (defined in Article XXXIV, below) and the term shall be co-terminous with the remaining term of this Lease. For a period of thirty (30) days thereafter, the parties shall make a good faith effort to agree upon the Fair Market Value for Base Rent of the additional portions. In the event that Lessor and Lessee fail to agree within said thirty (30) day period, then the Fair Market Value for Base Rent for such additional portion shall be determined by appraisal in the manner set forth in Article XXXIV hereof. For this purpose, however, "Fair Market Value" shall be determined by considering the amount of tenant improvement allowance and the then remaining term of this Lease. ARTICLE XXXI. FIRST OPTION TO EXTEND: Lessee shall have the right, subject to the provisions hereinafter provided, to extend the term of this Lease for one (1) period of five (5) years on the terms and provisions of this Article XXXI. Such five-year renewal period is sometimes herein referred to as the "First Renewal Term". The conditions of such First Renewal Term shall be as follows: (a) That this Lease is in full force and effect and Lessee is not in default in the performance of any of the terms, covenants and conditions herein contained, in respect to which notice of default has been given hereunder which has not been or is not being remedied in the time limited Scottsdale Northsight/JDA Software 04/30/98: 532732.1827-0801 Exhibit C (Page 4 of 14) in this Lease, at the time of exercise of the right of renewal, but Lessor shall have the right at its sole discretion to waive the non-default conditions herein. (b) That such First Renewal Term shall be on the same terms, covenants and conditions as in this Lease; provided, however, the annual Base Rent for such First Renewal Term shall be an amount equal to 115% of the Base Rent rate for the last sixty (60) months of the initial ten (10) year term of this Lease per rentable square feet of the Premises. (c) That Lessee shall exercise its right to the First Renewal Term provided herein, if at all, by notifying Lessor in writing of its election to exercise the right to renew the term of this Lease no later than twelve (12) months prior to end of the initial ten-year term. ARTICLE XXXII. SECOND OPTION TO EXTEND: If and only if Lessee has exercised its option to extend the term of this Lease for the First Renewal Term and this Lease is in full force and effect, Lessee shall have the right, subject to the provisions hereinafter provided, to further extend the term of this Lease for one (1) period of five (5) years on the terms and provisions of this Article XXXII. Such five-year renewal period, which is sometimes hereinafter referred to as the "Second Renewal Term", shall commence on the day after the expiration of the First Renewal Term. The conditions of such Second Renewal Term shall be as follows: (a) That this Lease is in full force and effect and Lessee is not in default in the performance of any of the terms, covenants and conditions herein contained, in respect to which notice of default has been given hereunder which has not been or is not being remedied in the time limited in this Lease, at the time of exercise of the right of renewal, but Lessor shall have the right at its sole discretion to waive the non-default conditions herein. (b) That such Second Renewal Term shall be on the same terms, covenants and conditions as in this Lease; provided, however, the annual Base Rent for such Second Renewal Term shall be an amount equal to ninety-five percent (95%) of the Fair Market Value for Base Rent rate for such space on the date such renewal term shall commence in relation to comparable (in quality, location and size) office space located in Scottsdale, Arizona. The determination of such Fair Market Value for Base Rent for the Premises shall be made no later than the date that is twelve (12) months prior to the end of the First Renewal Term. Provided Lessee has properly elected to renew the term of this Lease, and if Lessor and Lessee fail to agree at least eleven (11) months prior to the end of the First Renewal Term upon the Fair Market Value for Base Rent of the Premises, the Fair Market Value for Base Rent of the Premises shall be determined by appraisal in accordance with the provisions of Article XXXIV hereof. Notwithstanding anything to the contrary contained in this Article, in no event shall the Base Rent of the Premises for the Second Renewal Term be less than the Base Rent (exclusive of temporary abatements) payable by Lessee under the terms of this Lease immediately prior to commencement of such Second Renewal Term. (c) That Lessee shall exercise its right to the Second Renewal Term provided herein, if at all, by notifying Lessor in writing of its election to exercise the right to renew the term of this Lease no later than twelve (12) months prior to end of the First Renewal Term. Upon notification with respect to such renewal, and for a period of thirty (30) days thereafter, the parties hereto Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 5 of 14) shall make a good faith effort to agree upon the Fair Market Value for Base Rent of the Premises for such Second Renewal Term. In the event that Lessor and Lessee fail to agree within the thirty (30) day time period set forth in this subparagraph (c), the Fair Market Value for Base Rent of the Premises for such Second Renewal Term shall be determined by appraisal in the manner set forth in Article XXXIV hereof. Any determination by appraisal or any agreement reached by the parties hereto with respect to such Fair Market Value for Base Rent and resulting Base Rent of the Premises for such Second Renewal Term shall be expressed in writing and shall be executed by the parties hereto, and a copy thereof delivered to each of the parties. ARTICLE XXXIII. THIRD OPTION TO EXTEND. If and only if Lessee has exercised its option to extend the term of this Lease for the Second Renewal Terms and this Lease is in full force and effect, Lessee shall have the right, subject to the provisions hereinafter provided, to further extend the term of this Lease for one (1) period of five (5) years on the terms and provisions of this Article XXXIII. Such five-year renewal period, which is sometimes hereinafter referred to as the "Third Renewal Term", shall commence on the day after the expiration of the Second Renewal Term. The conditions of such Third Renewal Term shall be as follows: (a) That this Lease is in full force and effect and Lessee is not in default in the performance of any of the terms, covenants and conditions herein contained, in respect to which notice of default has been given hereunder which has not been or is not being remedied in the time limited in this Lease, at the time of exercise of the right of renewal, but Lessor shall have the right at its sole discretion to waive the non-default conditions herein. (b) That such Third Renewal Term shall be on the same terms, covenants and conditions as in this Lease; provided, however, the annual Base Rent for such Third Renewal Term shall be an amount equal to ninety-five percent (95%) of the Fair Market Value for Base Rent rate for such space on the date such renewal term shall commence in relation to comparable (in quality, location and size) office space located in Scottsdale, Arizona. The determination of such Fair Market Value for Base Rent for the Premises shall be made no later than the date that is twelve (12) months prior to the end of the Second Renewal Term. Provided Lessee has properly elected to renew the term of this Lease, and if Lessor and Lessee fail to agree at least eleven (11) months prior to the end of the Second Renewal Term upon the Fair Market Value for Base Rent of the Premises, the Fair Market Value for Base Rent of the Premises shall be determined by appraisal in accordance with the provisions of Article XXXIV hereof. Notwithstanding anything to the contrary contained in this Article, in no event shall the Base Rent of the Premises for the Third Renewal Term be less than the Base Rent (exclusive of temporary abatements) payable by Lessee under the terms of this Lease immediately prior to commencement of such Third Renewal Term. (c) That Lessee shall exercise its right to the Third Renewal Term provided herein, if at all, by notifying Lessor in writing of its election to exercise the right to renew the term of this Lease no later than twelve (12) months prior to end of the Second Renewal Term. Upon notification with respect to such renewal, and for a period of thirty (30) days thereafter, the parties hereto shall make a good faith effort to agree upon the Fair Market Value for Base Rent of the Premises for such Third Renewal Term. In the event that Lessor and Lessee fail Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 6 of 14) to agree within the thirty (30) day time period set forth in this subparagraph (c), the Fair Market Value for Base Rent of the Premises for such Third Renewal Term shall be determined by appraisal in the manner set forth in Article XXXIV hereof. Any determination by appraisal or any agreement reached by the parties hereto with respect to such Fair Market Value for Base Rent and resulting Base Rent of the Premises for such Third Renewal Term shall be expressed in writing and shall be executed by the parties hereto, and a copy thereof delivered to each of the parties. ARTICLE XXXIV. APPRAISAL: Within seven (7) days after the expiration of the period within which Lessor and Lessee were to reach agreement on the Fair Market Value for Base Rent as provided in Article XXXII, Article XXXIII or Article XXXV, Lessor and Lessee shall mutually appoint an appraiser that has at least five (5) years full-time commercial appraisal experience and is a member of the American Institute of Real Estate Appraisers. If Lessor and Lessee are unable to agree upon an appraiser, either of the parties to this Lease, after giving five (5) days prior written notice to the other party, may apply to the then president of the Phoenix Board of Realtors for the selection of an appraiser who meets the foregoing qualifications, which selection shall be made within fifteen (15) days. The appraiser selected by the president of the Board of Realtors shall be a person who has not previously acted in any capacity for either party, its affiliates or leasing agents and who meets the above experience qualifications. Lessor and Lessee shall each, within seven (7) days of the appointment (either by agreement or selection) of the appraiser, submit to the appraiser such parties' determination of the Fair Market Value for Base Rent for purposes of Article XXXII, Article XXXIII or Article XXXV, as the case may be. Within twenty (20) days after the conclusion of the above-referenced seven-day period, the appraiser shall review each of the Lessor's and Lessee's submittals and shall review such other information as such appraiser shall deem necessary (a party may furnish the appraiser with any information it deems relevant) and shall determine which of the two submittals is the more reasonable. The appraiser shall immediately notify the parties of his or her selection, and such selection shall be the Base Rent of the Premises for the Second Renewal Term or the Third Renewal Term, as the case may be. If, upon the expiration of the above-referenced seven-day period, the appraiser shall have received one of the party's submittals as to the Fair Market Value for Base Rent, but not both, the appraiser shall designate the submitted item as the Base Rent for the Second Renewal Term or the Third Renewal Term, as the case may be, and the appraiser shall immediately notify the parties of same. Notwithstanding the foregoing two sentences, in no event shall the Base Rent of the Premises for the Second Renewal Term or the Third Renewal Term be less than the Base Rent (exclusive of temporary abatements) payable by Lessee under the terms of this Lease immediately prior to commencement of the applicable renewal term. For purposes of this Lease, the parties intend for the "Fair Market Value" for Base Rent to be the prevailing rental rate then being obtained by Lessor (or that Lessor would then be able to obtain) under leases of comparable space within the Office Complex for a comparable term (including any renewal terms that have then been exercised by Lessee). In determining the Fair Market Value, the parties shall consider the prevailing rental rate that is then being obtained (or would be able to be obtained) by other landlords of buildings similar to the Office Complex located in the same regional Scottsdale area under leases of comparable space for a comparable term. In determining the Fair Market Value, adjustments shall be made to account for (a) the difference, if any, between (i) the amount of tenant improvement allowance, free rent and other tenant inducements that Lessor and such other landlords are (or would be) required to grant under leases, and (ii) the amount of tenant improvement allowance, free rent and other tenant Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 7 of 14) inducements to which Lessee will be entitled under this Lease for the subject space and term (and, for purposes of such adjustment when determining the Fair Market Value for any renewal term, Lessor shall be deemed to have granted Lessee a tenant improvement allowance in an amount equal to the replacement value of the then-existing leasehold improvements in the Premises); and (b) the amount of Operating Expenses and Real Estate Taxes per square foot of rentable area that Lessor and such other landlords are (or would be) required to pay under the leases at such prevailing rental rate. ARTICLE XXXV. FIRST RIGHT OF OFFER. Subject to the terms and conditions set forth in this Article XXXV, Lessor hereby grants to Lessee the first right ("First Right") to be offered by Lessor to lease certain portions of the Building. However, except for the Premises leased to Lessee at the commencement of the term of this Lease, Lessee agrees that the First Right shall apply only to the balance of the leasable area in the Building (not so leased by Lessee) and only after the expiration or earlier termination of leases with third party tenants, procured by Lessor as the initial or subsequent occupants of such balance. If, at any time while this First Right is in effect, Lessor should intend to lease such space to a third party tenant subsequent to the initial third party tenant, then Lessor shall first offer to lease such space to Lessee. In the event Lessor offers to Lease such space to Lessee pursuant to this Article XXXV, Lessee shall notify Lessor in writing within thirty (30) days of its receipt of Lessor's notice whether Lessee desires to offer to lease such space from Lessor. If Lessee notifies Lessor in writing within such thirty-day period that Lessee does not desire to lease such space, or if Lessee does not respond in writing to Lessor's notice within such thirty-day period, then, in either of the above instances, Lessor's obligations under this Article XXXV shall automatically terminate as to that space at that time and Lessor shall thereafter be entitled to lease such space. If Lessee notifies Lessor in writing within such thirty-day period that Lessee desires to lease such space from Lessor, the parties shall thereafter negotiate for Lessee's lease of the space from Lessor; provided, however, that if Lessor and Lessee fail to mutually agree upon the terms of Lessee's lease of such space and to execute a written amendment to this Lease within ten (10) business days of the date of Lessee's receipt of written notice (which amendment shall contain the terms mutually agreed to by the parties for Lessee's lease of such space), then Lessor's obligations under this Article XXXV shall automatically terminate and be of no further force or effect at the end of such ten (10) business days period with respect to such space, until after it has again been leased to a third party tenant. This First Right described herein is intended by the parties to be valid throughout the term of this Lease, including any renewals of said term, however, the terms of any amendment to include any additional space within the "Premises" shall consider the remaining term of this Lease, and to appropriately prorate (and thereby reduce) any concessions or allowances otherwise made by Lessor, so as to result in a realization by Lessor of a substantially equivalent economic return in regard to the additional space. The purpose of this Article is to provide notice to Lessee so that Lessee may be in a position to offer to lease such space on a competitive basis with others, and, notwithstanding anything to the contrary contained in this Article XXXV, nothing in this Article XXXV shall be deemed to be an option or right of first refusal. ARTICLE XXXVI. SIGNAGE AND NAMING RIGHTS: Provided Lessee at its cost receives all necessary governmental and quasi-governmental approvals therefor, Lessor shall allow Lessee to erect a sign on the exterior of the Office Complex, in a location designated by Lessor, which sign shall be Lessee's name and the building designation sign. Lessee shall also have the right to designate the name for the Office Complex. Lessor shall pay for the procurement and installation of such signage to the extent the Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 8 of 14) plans and specifications set forth in Exhibit "F" require Lessor to procure or install such signage. Lessee shall pay all annual and other permit fees therefor, shall pay all costs of maintenance thereof, shall keep same in good condition, order and repair at its sole cost and expense, shall remove same prior to termination of this Lease, and shall repair and restore any damage to the Office Complex caused by such installation and/or removal. Any such sign, and the display of Lessee's name thereon, shall be subject to the terms of any restrictive covenants applicable thereto and all applicable laws, ordinances and regulations. Lessor and Lessee shall approve the comprehensive sign program to be submitted to the City of Scottsdale for approval. Lessor expressly reserves the right to erect additional signs on the exterior of the Office Complex, for the benefit of the other tenants, however, the size, location and appearance of such signage shall be subject to Lessee's approval, which shall not be unreasonably withheld, delayed or conditioned. The signage rights of Lessee and of Lessor shall be proportionate, in area, based upon the relative areas of the Office Complex (i) of the Premises, and (ii) of the remainder of the rentable area of the Office Complex. ARTICLE XXXVII. TENANT IMPROVEMENTS: A. Lessor is providing the existing base building (pursuant to the schedule of base building plan attached hereto as Exhibit "F") and a tenant improvement allowance of $30.00 per usable square foot (the "Tenant Improvement Allowance") for the tenant improvements to be constructed by Lessor at the Premises. All improvements to the existing base building will be so-called "Tenant Improvements" to be installed by Lessor but to be selected by Lessee as hereinafter provided and paid for by Lessee subject to Lessor providing an allowance in the aforesaid amount. Included within the Tenant Improvement Allowance shall be all costs for space planning, construction document preparation, design work and construction drawing work and all costs of obtaining permits. In the event Lessee desires any Tenant Improvements having a price in excess of the Tenant Improvement Allowance, Lessee shall pay Lessor in cash for such excess amount or, at Lessee's option, such excess amount (up to $7.00 per rentable square foot of the Premises) may be paid by Tenant in equal monthly installments over the Initial Term, with an annual interest rate thereon of nine percent (9%), in which case, such excess amount shall be deemed to be included in the Tenant Improvement Allowance. If Lessee requests a higher grade or quality of any component of the Tenant Improvements (if any) otherwise provided by Lessor pursuant to the plans and specifications of Exhibit "F", Lessor will allow a credit for the cost of the component replaced. The balance of the amount by which the cost of the Tenant Improvements exceeds the Tenant Improvement Allowance shall be paid for in cash by Lessee to Lessor upon substantial completion of the Tenant Improvements. In the event the actual cost of the Tenant Improvements is less than the Tenant Improvement Allowance (without regard to the $7.00 per rentable square foot additional amount), the difference between the actual cost of such Tenant Improvements and the Tenant Improvement Allowance shall be available to Lessee as a credit against Base Rent due from Lessee to Lessor. Opus West Construction Corporation shall be the general contractor for all Tenant Improvement work. All major subcontracts shall be competitively bid. B. On or before June 17, 1998, Lessee shall provide to Lessor a space plan for the Tenant Improvements to be constructed by Lessor, which space plan shall have received final approval of Lessee and which shall be adequate for preparation by Lessor of working drawings for construction of such Tenant Improvements. Such space plan shall show in reasonable detail the design and appearance of the tenant finishing materials to be used in the construction thereof, and such other detail or description as may be necessary to adequately outline the scope of the Tenant Improvements. If Lessee shall provide Lessor with Lessee's space plan after June 17, 1998, then the Target Commencement Date (April Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 9 of 14) 1, 1999) shall be automatically extended day-for-day for each day of delay after June 17, 1998. C. Lessor's architect (which shall be selected by Lessee from the list of architects already approved by Lessor) shall prepare the final working drawings and specifications for the construction and installation of the Tenant Improvements. Lessee shall approve or disapprove the final working drawings and specifications within ten working days after receipt of same, and if Lessee fails to approve or disapprove same within such ten working day period, Lessee shall be deemed to have approved the final working drawings and specifications. Lessee agrees that it will not withhold its approval except for just and reasonable cause and will not act in an arbitrary or capricious manner with respect to the approval of the final working drawings and specifications. Lessor's architect shall review and seal said plans and submit the plans for permits and construction bids. D. Subject to the provisions of Article XXXVII.G., below, if Lessee desires to make revisions to the final working drawings and specifications once they have been approved, Lessee shall request that Lessor's architect prepare, and submit to Lessor for approval, proposed working drawings and specifications containing all such desired revisions. Upon approval by Lessor of any revisions, Lessor shall obtain promptly from its contractor the amount of any adjustment in the Tenant Improvement costs resulting from such revisions and the amount of any delay that would result from constructing such proposed revisions, and Lessor shall submit the amount thereof and the contemplated delay caused thereby to Lessee for Lessee's approval. Lessee shall approve or disapprove the amount of such adjustment and the delay caused thereby within two working days after submission thereof to Lessee by Lessor, and if Lessee fails to notify Lessor of its disapproval within such two working day period, Lessee shall be deemed to have given Lessee's approval thereto. If Lessee disapproves either the amount of such adjustment or the delay resulting therefrom, then such proposed revision shall be deemed withdrawn by Lessee and Lessor shall have no obligation to cause the construction of such revision. Once any adjustment and the resulting delay have been approved, Lessee shall be deemed to have given full authorization to Lessor to proceed with the work of constructing and installing the Tenant Improvements in accordance with the final working drawings and specifications, as revised. E. Lessor shall use its best faith efforts to cause the construction of the Office Complex, the Premises or the Tenant Improvements to be substantially completed, subject only to completion of punchlist items, on or before fifteen (15) days prior to the Target Commencement Date; provided, however, that if any delay is caused or contributed to by Lessee (which shall include delays described above relating to the failure of Lessee to submit the required plans by June 17, 1998 or to respond timely to approve the final working drawings and specifications and shall also include any delays caused by any Lessee-proposed revisions to the final working drawings and specifications), or in the event performance by Lessor is delayed due to force majeure, which shall include, without limitation, act or neglect of Lessee or those acting for or under Lessee ("Lessee Delay"), labor disputes, casualties, acts of God or the public enemy, governmental embargo restrictions, shortages of fuel, labor or building materials, action or nonaction of public utilities, or of local, state or federal governments affecting the Tenant Improvements or other causes beyond Lessor's reasonable control), then the Target Commencement Date shall be automatically extended day-for-day for each day of any such delay. F. The price charged by Lessor to Lessee for the Tenant Improvements shall be all direct and indirect costs thereof plus three percent (3%) as a development fee, five percent (5%) for Lessor's overhead and profit and five percent (5%) as a fixed-fee Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 10 of 14) general conditions cost, in connection with the construction of the Tenant Improvements. Lessee shall be responsible for Lessor's costs (including lost rent) arising out of delays in completing the Tenant Improvements caused by Lessee. Lessee also agrees to refrain from ordering long lead time items which would delay substantial completion of the Tenant Improvements. For purposes of this Article, "long lead time items" shall mean items required to complete the Tenant Improvements that may delay substantial completion beyond the date which is fifteen (15) days prior to the Target Commencement Date due to causes such as an extended length of time necessary for the supplier of the item to manufacture same or due to a lengthy shipping time. Lessor shall give notice to Lessee as soon as practicable, to identify any items constituting "long lead time items." G. From time to time, Lessee may request reasonable modifications of the plans and specifications of the final working drawings for the Tenant Improvements, or to the plans and specifications set forth on Exhibit "F" attached hereto. Lessor reserves the right to reject such request if the request requires a substantial modification of the structural aspects or primary systems of the Building, a substantial delay in the completion of the construction, or a substantial increase in the costs of construction. As soon as reasonably possible after receipt of such request (if not rejected for the foregoing reasons), Lessor shall prepare a change order which shall describe the modification requested and the additional costs and delays, if any, which shall result and the time period for Lessee to review and accept the change order. Further, Lessor shall be entitled to propose, as a condition to Lessor's agreement to the change order, a modification of the provisions of Article IV, so that as a result of the delays anticipated to be caused by the change order, Lessor's liability for the Reimbursement Obligation shall not be increased. If Lessee accepts the change order (and by implication, all modifications to the Lease required, as proposed by Lessor and necessitated thereby), then Lessor shall diligently proceed to construct the proposed change order improvements. Lessee shall pay any such costs upon demand by Lessor and completion of such change order improvements, including the fees and charges allowed in Article XXXVII.F., above. ARTICLE XXXVIII. TERMINATION RIGHT: Provided (a) Lessee is free from default under the terms of this Lease on both the date Lessee delivers written notice to Lessor as provided in subparagraph (b) of this sentence and on the last day of the eighty-fourth (84th) month of the initial ten-year term of this Lease, and (b) on or before the last day of the seventy-second (72nd) month of the initial term, Lessee delivers written notice to Lessor advising Lessor that Lessee desires to terminate this Lease as of the end of the eighty-fourth (84th) month of the initial term, together with a payment in good funds (as a termination payment and not as advance rent) equal to the Base Rent and Additional Rent required to be paid by Lessee pursuant to the terms of this Lease, for the twelve (12) month period ending on the last day of such eighty-fourth (84th) month, plus, an amount equal to the unamortized balance of the Tenant Improvement Allowance in excess of the $30.00 per usable square foot (provided in Article XXXVII.A. and which is being amortized over the Initial Term at nine percent (9%) per annum), if any, projected to exist at the end of said eighty-fourth (84th) month, and (c) pays the Base Rent and Additional Rent when and as due through said eighty-fourth (84th) month, then this Lease shall be deemed to terminate on the last day of the eighty-fourth (84th) month of the initial term. ARTICLE XXXIX. RIGHT TO EXAMINE BOOKS AND RECORDS OF LESSOR: Lessor hereby agrees, at Lessee's request, to make available to Lessee for its inspection and examination all of the books and records that relate to Lessor's statement as to Lessee's Pro Rata Share of Real Estate Taxes and Lessee's Pro Rata Share of Operating Expenses. Lessor also agrees to make the aforementioned books and records available to a certified public accountant, selected by Lessee, for review and audit if Lessee so elects. If Lessee elects to audit such costs and expenses and Lessor's statement is found to be in error, the appropriate party shall pay to the other such payment as may be required based upon such audit. Further, if Lessee elects to audit such costs and expenses as provided above and Lessor's statement is found to be in error by more than ten Scottsdale Northsight/JDA Software 04/30/98: 532732.1827-0801 Exhibit C (Page 11 of 14) percent (10%), then Lessor shall pay the reasonable costs of such audit not to exceed $2,500. Lessee's right to audit and obtain reimbursement of any erroneously charged amount of Real Estate Taxes or Operating Expenses for any given Lease Year, shall expire as of December 31 of the following calendar year. ARTICLE XL. CONSTRUCTION WARRANTY: Lessor shall cause Opus West Construction Corporation ("Opus West") to guarantee the Tenant Improvements against defective workmanship and/or materials for a period of one (1) year from the date of substantial completion of the Tenant Improvements and Lessor shall cause Opus West to guarantee also the Building and the Office Complex against defective workmanship and/or materials for a period of one (1) year from the substantial completion thereof. Lessor agrees to cause Opus West to repair or replace any defective item in the Tenant Improvements or such other improvements occasioned by poor workmanship and/or materials during the applicable one-year period, and Opus West's performance of such one-year guarantee shall be the sole and exclusive obligation of Lessor or Opus West with respect to such defective workmanship and/or materials, and Lessee's rights to enforce such one-year guarantee against Opus West shall be Lessee's sole and exclusive remedy with respect to such defective workmanship and/or materials in limitation of any contract, warranty or other rights, whether express or implied, that Lessee may otherwise have under applicable law. To the extent warranties of any of Lessor's subcontractors or suppliers remain enforceable after the expiration of Lessor's one (1) year guarantee described above, Lessor shall cooperate with Lessee to enforce same for the parties' mutual benefit. Lessor agrees to obtain a ten (10) year warranty or bond on the roof membrane and structure from the roof supplier and contractor. Subject to Articles II, XII and XIII hereof and to Lessee's obligations hereunder, except to the extent of any damage caused by the fault or negligence of Lessee, Lessor shall maintain and keep in good order, condition and repair the structural components (defined as the footings and foundation, support walls and columns and the roof structure (exclusive of the roof membrane)) of the Building in which the Premises is located. All costs and expenses incurred in connection therewith shall be included in Operating Expenses, except for any capital improvements that are excluded pursuant to Article II, which excluded capital improvements shall not be included in Operating Expenses. ARTICLE XLI. FIXTURIZATION PERIOD: Lessor shall permit Lessee, during the fifteen (15) day period following substantial completion of the Tenant Improvements and prior to the commencement date of this Lease (as to all, or a portion of the Premises if the delivery by Lessor is in phases), to commence installing Lessee's furniture, fixtures and equipment in the Premises; provided, however, that Lessee shall not interfere with any Tenant Improvement work then being completed by Lessor, and provided further, however, that Lessee shall not commence doing business in the Premises during such fifteen-day period. During such early move-in period, Lessee agrees to comply with all provisions of this Lease (except for the provisions relating to the payment of rent, which shall not become effective until the commencement date of this Lease as to all, or a portion of the Premises if the delivery by Lessor is in phases). Prior to entering the Premises during such early move-in period, Lessee agrees that all insurance required to be maintained by Lessee under Article VI of this Lease shall be in full force and effect, and Lessee agrees to deliver certificates of insurance to Lessor evidencing such insurance. All improvements, alterations, additions and installations made by Lessee prior to the commencement date of this Lease shall be made in strict compliance with the provisions of Article VIII of this Lease. ARTICLE XLII. HOLDOVER RIGHT: Lessee shall have the right, subject to the provisions hereinafter provided, to extend the term of this Lease for one (1) period of three (3) months after the Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 12 of 14) expiration of the initial ten-year term (or after any renewal options thereafter) on the terms and provisions of this Article. Such three-month renewal period is sometimes herein referred to as the "Holdover Period". The conditions of Lessee's lease of the Premises during the Holdover Period shall be as follows: (a) That this Lease is in full force and effect and Lessee is not in default in the performance of any of the terms, covenants and conditions herein contained, in respect to which notice of default has been given hereunder which has not been or is not being remedied in the time limited in this Lease, at the time of exercise of the right of renewal, but Lessor shall have the right at its sole discretion to waive the non-default conditions herein. (b) That Lessee's lease of the Premises during the Holdover Period shall be on the same terms, covenants and conditions as in this Lease; provided, however, the monthly Base Rent for such Holdover Period shall be an amount equal to the Base rent amount, in effect immediately prior to the Holdover Period, multiplied by 125%. (c) That Lessee shall exercise its right to remain in possession of the Premises during the Holdover Period, if at all, by notifying Lessor in writing of its election to do so no later than six (6) months prior to end of the initial ten-year term, or any applicable and exercised renewal term. If the Premises are not surrendered at the end of the term (as may be extended by the preceding provisions of this Article) or sooner termination thereof, Lessee shall indemnify Lessor against loss or liability resulting from delay by Lessee in so surrendering the Premises, including, without limitation, claims made by any succeeding tenants founded on such delay and any attorneys' fees resulting therefrom. In the event Lessee remains in possession of the Premises after expiration of this Lease and without the execution of a new lease and without Lessor's written consent, Lessee shall be deemed to be occupying the Premises without claim of right and Lessee shall pay Lessor for all costs arising out of loss or liability resulting from delay by Lessee in so surrendering the Premises as above provided and shall pay a charge for each day of occupancy in an amount equal to double the Base Rent and Additional Rent (on a daily basis) payable by Lessee under this Lease immediately prior to the expiration of this Lease. ARTICLE XLIII. PARKING: Lessor shall construct not less than six (6) vehicular parking spaces on the Property per 1,000 rentable square feet in the Office Complex. Lessee (and its employees, invitees and visitors) shall be entitled to use, without charge, six (6) vehicular parking spaces per 1,000 rentable square feet in the Premises, of which spaces, approximately thirty-five percent (35%) shall be covered. Subject to Lessor's approval (which shall not be unreasonably withheld), Lessee may request Lessor to provide covered parking with respect to a certain number of additional parking spaces to be designated by Lessee. In the event Lessee desires and Lessor approves such covered parking, the cost incurred by Lessor in connection with such covered parking shall be paid by Lessee within thirty (30) days after Lessee's receipt of Lessor's written request therefor. Lessee and Lessor shall cooperate in the designation of "reserved" and "visitor" spaces for the exclusive benefit of Lessee and in the location of the parking; however, any costs in such designation shall be borne solely by Lessee, and Lessor shall have no obligation regarding the enforcement of Lessee's rights to such parking. Lessee shall determine the number of "reserved" covered parking spaces allocated to Lessee. Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C (Page 13 of 14) ARTICLE XLIV. ACQUISITION CONTINGENCIES: This Lease, and Lessor's obligations hereunder are expressly conditioned upon Lessor's acquisition of the Property on terms and conditions acceptable to Lessor in its absolute discretion, on or before July 1, 1998. Accordingly, if Lessor shall notify Lessee on or before July 15, 1998, to the effect that Lessor has failed to acquire the Property, then in such case this condition subsequent shall be deemed failed and this Lease shall terminate, and neither party shall have any obligation or liability to the other. Lessee acknowledges receipt of that letter of intent by and between Lessor and Treaccar, dated March 23, 1998,' and Lessee confirms the acceptability thereof. Such agreement shall also include an option right to acquire a parcel of approximately 5 acres in size, adjacent to the Property, and such option shall provide that it shall be freely assignable from Lessor to Lessee, upon mere notice by Lessee. ARTICLE XLV. INDEMNITY BY LESSOR: Lessor agrees to indemnify and save Lessee harmless against and from any and all claims, loss, damage and expense by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from any breach or default on the part of Lessor in the performance of any covenant or agreement on the part of Lessor to be performed, pursuant to the terms of this Lease, or arising from any negligence or wilful misconduct on the part of Lessor or its agents, contractors, servants, employees or licensees, or arising from any accident, injury or damage to the extent caused by the negligence or wilful misconduct of Lessor or its agents or employees to any person, firm or corporation occurring during the term of this Lease or any renewal thereof, in or about the Premises and the Office Complex, and from and against all costs, reasonable counsel fees, expenses and liabilities incurred in or about any such claim or action or proceeding brought thereon; and in case any such action or proceeding be brought against Lessee by reason of any such claim, Lessor, upon notice from Lessee, covenants to resist or defend such action or proceeding by counsel reasonably satisfactory to Lessee; provided, however, that notwithstanding anything to the contrary contained in this Article, Lessor shall not be liable for, and Lessor shall not indemnify Lessee against or from, (a) any consequential damages of Lessee, which shall include without limitation any loss of business or loss of profits, or (b) any claim which Lessee has waived pursuant to Article VI of this Lease, or (c) any claim which is not covered by, or exceeds the limits of, Lessor's general public liability insurance policy. Exhibit C (Page 14 of 14) FIRST AMENDMENT TO OFFICE LEASE SCOTTSDALE NORTHSIGHT This First Amendment to Office Lease (the "Amendment") dated as of the 30th day of June, 1998, by and between OPUS WEST CORPORATION, a Minnesota corporation ("Lessor") and JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee"). RECITALS 1. By that Lease dated as of April 30, 1998 (the "Lease") by and between Lessor and Lessee, the parties agreed to lease approximately 95,000 rentable square feet (the "Premises"), within that Office Complex to be constructed by Lessor, west and contiguous to 87th Street and South of Raintree Drive in Scottsdale, Arizona; 2. Pursuant to Article XXI. DETERMINATION OF AREA OF PREMISES OF THE LEASE, Lessee has the right to give notice to Lessor, prior to the date of the construction permit, to designate additional areas on the first floor of the Building to be included as part of the Premises, and accordingly, this Amendment shall constitute said notice by Lessee, and a revision of the area intended to be the Premises. THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: A. Notwithstanding any provision in the Lease to the contrary, the parties agree that the Premises shall be comprised of the entire second (2nd) and third (3rd) floor of the Building, plus (approximately) 20,000 rentable square feet located in the first floor of the Building. Exhibit A-l attached to this Amendment sets forth the conceptual depiction and location of the Premises as expanded hereby. Such adjustment in the rentable area of the Premises shall be effective for all purposes referenced in the Lease, including, without limitation, in the determination of the Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses, the Tenant Improvement Allowance (although said amount shall continue to be computed based upon usable square feet), the allocation of parking rights pursuant to Article XLIII (i.e. at the rate of six (6) spaces per 1,000 rentable square feet), and for other purposes set forth in the Lease. Notwithstanding the foregoing, the commencement date memorandum to be executed by the parties pursuant to Article XXVIII of the Lease shall control as to the exact amount of rentable and usable area for the Premises. B. Except as specifically modified or amended hereby, the parties confirm and ratify the Lease as enforceable and binding in accordance with its terms and provisions. All capitalized terms not otherwise defined herein shall have the meanings provided in the Lease. IN WITNESS WHEREOF, the undersigned parties have executed this Amendment to be effective as of the date first written above. LESSOR: LESSEE: OPUS WEST CORPORATION, a JDA SOFTWARE GROUP, INC., a Minnesota corporation Delaware corporation By /s/ Thomas W. Roberts By /s/ Brent W. Lippman ---------------------- ------------------------ Thomas W. Roberts Name BRENT W. LIPPMAN Its President Print BRENT W. LIPPMAN Its : CHIEF EXECUTIVE OFFICER EXHIBIT A-1 FLOOR PLAN [FIRST FLOOR PLAN] Exhibit A-1 (Page 1 of 3) EXHIBIT A-1 FLOOR PLAN [SECOND FLOOR PLAN] Exhibit A-1 (Page 2 of 3) EXHIBIT A-1 FLOOR PLAN [THIRD FLOOR PLAN] Exhibit A-1 (Page 3 of 3) EXHIBIT E TOTAL PROJECT COSTS NOTE: The five percent (5%) risk factor premium imposed upon the land cost to compensate Lessor for the risk of Lessor's future expansion and the corresponding speculative space shall be proportionately reduced if the portion of the Building which is not initially leased by Lessee diminishes from 30.15%. NORTHSIGHT DEVELOPMENT COST BREAKDOWN JDA SOFTWARE MARCH 10, 1998
JDA INITIAL REQUIREMENT 95,000 RSF ----------- 95,000 69.85% LAND 435,600 SF @ $9.50 $4,138,200 X 74.85%* $ 3,097,564 BUILDING Shell Design 98,835 GSF @ $ 3.00 $ 296,504 Shell Building 98,835 GSF @ $46.18 $ 4,564,185 Tenant Improvements 90,000 USF @ $30.00 $ 2,700,000 ----------- TOTAL BUILDING COSTS $ 7,560,689 DEVELOPMENT COSTS Survey $ 3,493 Soil & Environmental $ 6,985 Real Estate Taxes $ 46,463 Legal Expenses $ 52,390 Advertising & Marketing $ 0 Development Fee @ 3% $ 366.406 ----------- TOTAL DEVELOPMENT COSTS $ 475,737 FINANCING COSTS Land Carry - 11 Mos. @ 8% $ 227,155 Construction Loan - 10.5 Mos. @ 8% $ 295,310 Financing Charge @ 1/2% $ 61.068 TOTAL FINANCING COSTS $ 583,532 COMMISSIONS 95,000 RSF @ 4% (1-5) & 2% (6-10) $ 400,995 DEVELOPMENT CONTINGENCY $ 95,000 ----------- TOTAL PROJECT COSTS 95,000 SF @ $128.56 $12,213,517 RATE RETURN @ 10.42% x 10.42% ----------- ANNUAL NET RENT $ 1,272,649 NET RENT BASED ON 95,000 RSF $ 13.40
* LANDLORD TO APPLY A FIVE PERCENT (5%) ADJUSTMENT TO THE JDA LAND ALLOCATION TO JUSTIFY RISK ASSOCIATED WITH TENANT'S FUTURE EXPANSION REQUIREMENT AND CORRESPONDING SPECULATIVE SPACE. Exhibit E (Page 1 of 1) EXHIBIT F BASE BUILDING PLANS [OPUS LOGO] CONCORDE COMMERCE CENTER- DRAWING LIST
No. DESCRIPTION DATE --- ----------- ---- CIVIL - ----- C1 COVER SHEET GRADING AND DRAINAGE PLAN 4/28/97 C2 GRADING AND DRAINAGE PLAN 4/28/97 C3 GRADING AND DRAINAGE PLAN 4/28/97 C4 GRADING AND DRAINAGE PLAN 4/28/97 C5 GRADING AND DRAINAGE PLAN 4/28/97 C6 GRADING AND DRAINAGE PLAN DETAILS 4/28/97 C7 COVER SHEET WATER AND SEWER PLAN 4/28/97 C8 WATER AND SEWER PLAN 4/28/97 C9 COVER SHEET PRIVATE FIRELINE PLAN 4/28/97 C10 PRIVATE FIRELINE PLAN 4/28/97 C11 PRIVATE FIRELINE PLAN 4/28/97 C12 PRIVATE FIRELINE PLAN 4/28/97 LANDSCAPE - --------- LA1 COVER SHEET 5/7/97 LA2 LANDSCAPE PLANS 5/7/57 LA3 LANDSCAPE PLANS 5/7/97 LA4 LANDSCAPE PLANS 5/7/97 LA5 IRRIGATION PLANS 5/7/97 LA6 IRRIGATION PLANS 5/7/97 LA7 IRRIGATION PLANS 5/7/97 LA8 DETAIL SHEET 5/7/97 LA9 SPECIFICATIONS 5/7/97 ARCHITECTURAL - ------------- T1.1 TITLE SHEET 9/22/97 A1.l SITE PLAN 9/22/97 A1.2 SITE DETAILS 9/22/97 A2.1 LEVEL ONE FLOOR PLAN 9/22/97 A2.2 LEVEL TWO FLOOR PLAN 9/22/97 A2.3 LEVEL THREE FLOOR PLAN 9/22/97 A2.4 ROOF PLAN 9/22/97 A2.5 CORE PLAN LEVEL ONE/ENLARGED STAIR PLANS 9/22/97 A2.6 ENLARGED CORE PLANS LEVELS TWO & THREE 9/22/97 A2.7 ENLARGED FINISH PLAN/FINISH SCHEDULE 9/22/97 A3.1 EXTERIOR ELEVATIONS 9/22/97 A3.2 ENLARGED ELEVATIONS 9/22/97 A4.1 STAIR/ELEVATOR SECTIONS/SECTION DETAILS 9/22/97 A4.2 STAIR/SECTION DETAILS 9/22/97 A4.3 WALL SECTIONS 9/22/97 A4.4 SECTIONS DETAILS 9/22/97 A5.1 CONSTRUCTION DETAILS 9/22/97 A5.2 FIRE RESISTIVE CONSTRUCTION DETAILS 9/22/97 A6.1 DOOR SCHEDULE/INTERIOR DETAILS 9/22/97 A7.1 INTERIOR ELEVATIONS 9/22/97 A7.2 INTERIOR ELEVATIONS 9/22/97 A9.1 REFLECTED CEILING PLANS 9/22/97
Exhibit F (Page 1 of 2) EXHIBIT F BASE BUILDING PLANS
Page 2 of 2 STRUCTURAL - ---------- S1 TITLE SHEET 2/6/98 S2.1 FOUNDATIONS PLAN 2/6/98 S2.2 LEVEL TWO FRAMING PLAN 2/6/98 S2.3 LEVEL THREE FRAMING PLAN 2/6/98 S2.4 ROOF FRAMING PLAN 2/6/98 S3.1 SECTIONS AND DETAILS 2/6/98 S3.2 SECTIONS AND DETAILS 2/6/98 S3.3 SECTIONS AND DETAILS 2/6/98 S3.4 STAIR PLANS AND SECTIONS 2/6/98 MECHANICAL - ---------- Ml.l LEGEND AND SYMBOLS 9/22/97 M2.1 FIRST FLOOR PLAN - MECHANICAL 9/22/97 M2.2. SECOND FLOOR PLAN - MECHANICAL 9/22/97 M2.3 THIRD FLOOR PLAN - MECHANICAL 9/22/97 M3.1 ENLARGED MECHANICAL PLANS - FIRST LEVEL 9/22/97 M3.2 ENLARGED MECHANICAL PLANS - SECOND LEVEL 9/22/97 M3.3 ENLARGED MECHANICAL PLANS - THIRD LEVEL 9/22/97 M4.1 SECTIONS 9/22/97 M5.1 CONTROLS - DIAGRAMS 9/22/97 M6.1 SCHEDULES 9/22/97 M7.1 DETAILS 9/22/97 P2.1 LEVEL ONE FLOOR PLAN PLUMBING PLANS 5/22/97 P2.2 LEVEL TWO FLOOR PLAN PLUMBING PLANS 5/22/97 P2.3 LEVEL THREE FLOOR PLAN PLUMBING PLAN 5/22/97 P3.1 ENLARGED PLUMBING PLANS/WATER PIPING 5/22/97 P3.2 ENLARGED PLUMBING PLANS/WATER PIPING 5/22/97 P4.1 WASTE AND VENT SCHEMATICS 5/22/97 ELECTRICAL - ---------- E1.1 ELECTRICAL SITE PLAN 6/26/97 E2.1 FIRST FLOOR ELECTRICAL PLAN 5/21/97 E2.2 SECOND FLOOR ELECTRICAL PLAN 5/21/97 E2.3 THIRD FLOOR ELECTRICAL PLAN 5/21/97 E2.4 FIRST FLOOR LIGHTING PLAN 10/9/97 E2.5 SECOND AND THIRD FLOOR LIGHTING PLAN 10/9/97 E2.6 FIRST FLOOR POWER PLAN 10/9/97 E2.7 SECOND AND THIRD FLOOR POWER PLANS 10/9/97 E4.1 ELECTRICAL SINGLE-LINE DIAGRAM 5/21/97 E4.2 ELECTRICAL SINGLE-LINE DIAGRAM 5/21/97 E4.3 ELECTRICAL SYMBOLS & RISER DIAGRAMS 5/21/97 E5.1 ELECTRICAL SCHEDULES 5/21/97
Exhibit F (Page 2 of 2) JDA SOFTWARE Revised - August 14, 1998
INITIAL REVISED PROJECT REQUIREMENT REQUIREMENT TOTALS 95,000 RSF 11 5,000 RSF 136,000 RSF ----------- ------------ ----------- 95,000 115,000 136,000 69.85% 84.56% 100% LAND 435,600 SF @ $9.50 New Factor Total Factor $4,138,200 X 74.85%* $ 3,097,564 x87.12* $ 3,605,192 x100% $ 4,138,200 BUILDING Shell Design 98,835 GSF @ $ 3.00 $ 296,504 119,642 GSF $ 358,926 141,490 GSF $ 424,470 Shell Building 98,835 GSF @ $46.18 4,564,185 119,642 GSF 5,525,068 141,490 GSF 6,534,008 Tenant Improvements 90,000 USF @ $30.00 2,700,000 108,947 USF 3,268.410 128,842 USF 3,865,260 ----------- ------------ ----------- TOTAL BUILDING COSTS $ 7,560,689 $ 9,152,404 $10,823,738 DEVELOPMENT COSTS Survey $ 3,493 $ 4,228 $ 5,000 Soil & Environmental 6,985 8,456 10,000 Real Estate Taxes 46,463 54,078 62,073 Legal Expenses 52,390 63,419 75,000 Advertising & Marketing 0 0 0 Development Fee @ 3% $ 366,406 443,666 524,538 ----------- ------------ ----------- TOTAL DEVELOPMENT COSTS $ 475,737 $ 573,847 $ 676,711 FINANCING COSTS Land Carry - 11 Mos. @ 8% $ 227,155 $ 264,381 $ 303,468 Construction Loan - 10.5 Mos. @ 8% 295,310 357,406 422,604 Financing Charge @ 1/2% 61,068 73,924 87,423 ----------- ------------ ----------- TOTAL FINANCING COSTS $ 583,532 $ 695,711 $ 813,495 COMMISSIONS 95,000 RSF @ 4% (1-5) & 2% (6-10) $ 400,995 485,415 $ 574,056 DEVELOPMENT CONTINGENCY $ 95,000 272,217 458,515 ----------- ------------ ----------- TOTAL PROJECT COSTS 95,000 SF @ $128.56 $12,213,517 $ 14,784,785 $17,484,616 RATE RETURN @ 10.42% x 10.42% x 10.42% x 10.42% ----------- ------------ ----------- ANNUAL NET RENT $ 1,272,649 $ 1,540,575 $ 1,821,897 NET RENT BASED ON 95,000 RSF $ 13.40 115,000 RSF $ 13.40 136,000 RSF $ 13.40
* Landlord to apply a two point five six percent (2.56%) adjustment to the JDA land allocation to justify risk associated with Tenant's future expansion requirement and corresponding speculative space. Factor was reduced from 5% to 2.56% to correspond with the reduction in the remaining speculative space. SECOND AMENDMENT TO OFFICE LEASE SCOTTSDALE NORTHSIGHT This Second Amendment to Office Lease (the "Amendment") dated as of the 23 day of November, 1998, by and between OPUS WEST CORPORATION, a Minnesota corporation ("Lessor") and JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee"). RECITALS 1. By that Lease dated as of April 30, 1998 (the "Lease") by and between Lessor and Lessee, the parties agreed to lease approximately 95,000 rentable square feet (the "Premises"), within that Office Complex to be constructed by Lessor, west and contiguous to 87th Street and South of Raintree Drive in Scottsdale, Arizona; 2. By that First Amendment to Office Lease dated June 30, 1998 (herein, the "First Amendment" ), Lessor and Lessee amended the Lease to provide that the Premises shall be comprised of the entire second (2nd) and third (3rd) floor of the Building, plus (approximately) 20,000 rentable square feet located in the first floor of the Building. Said First Amendment constituted Lessee's election under Article XXI of the Lease, to increase the size of the Premises by notice to Lessor given prior to the issuance of the Permit Date (as defined therein) to an area not to exceed 115,000 rentable square feet. 3. By this Amendment, Lessee and Lessor intend to increase again, the size of the Premises, such that the total area shall be 121,141 rentable square feet of space. THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: A. Notwithstanding any provision in the Lease to the contrary, the parties agree that the Premises shall be comprised of the entire second (2nd) and third (3rd) floor of the Building, plus that portion of the first floor, such that the total area of the Premises shall be (approximately) 121,141 rentable square feet. Exhibit A-l attached to this Amendment sets forth the conceptual depiction and location of the Premises as expanded hereby. Such adjustment in the rentable area of the Premises shall be effective for all purposes referenced in the Lease, including, without limitation, in the determination of the Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses, the Tenant Improvement Allowance (although said amount shall continue to be computed based upon usable square feet), the allocation of parking rights pursuant to Article XLIII (i.e. at the rate of six (6) spaces per 1,000 rentable square feet), and for other purposes set forth in the Lease. Notwithstanding the foregoing, the commencement date memorandum to be executed by the parties pursuant to Article XXVIII of the Lease shall control as to the exact amount of rentable and usable area for the Premises. B. Exhibit E, TOTAL PROJECT COSTS, attached to the Lease, is hereby replaced with Exhibit E, attached hereto. C. Except as specifically modified or amended hereby, the parties confirm and ratify the Lease, as amended by the First Amendment and this Amendment, as enforceable and binding in accordance with its terms and provisions. All capitalized terms not otherwise defined herein shall have the meanings provided in the Lease. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the undersigned parties have executed this Amendment to be effective as of the date first written above. LESSOR: LESSEE: OPUS WEST CORPORATION, a JDA SOFTWARE GROUP, INC., a Minnesota corporation Delaware corporation By /s/ Thomas W. Roberts By /s/ KRISTEN L MAGNUSON ---------------------- ----------------------------- Thomas W. Roberts Name KRISTEN L MAGNUSON Its President Print________________________ Its: CHIEF FINANCIAL OFFICER [THIRD FLOOR PLAN] EXHIBIT A-1 PAGE 1 of 3 [SECOND FLOOR PLAN] EXHIBIT A-1 PAGE 2 of 3 [FIRST FLOOR PLAN] EXHIBIT A-1 PAGE 3 of 3 REVISED AND RESTATED THIRD AMENDMENT TO LEASE AGREEMENT This Revised and Restated Third Amendment to Lease Agreement (the "Amendment") is dated to be effective as of this 20th day of October, 1999, by and between JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee") and OPUS WEST CORPORATION, a Minnesota corporation ("Lessor"). RECITALS A. WHEREAS, Lessee and Lessor entered into that Lease Agreement dated April 30, 1998, as amended by that First Amendment to Office Lease dated June 30, 1998, and that Second Amendment to Office Lease dated November 23, 1998 (collectively, said Lease Agreement and the amendments thereto are referred to as the "Lease"), all in regard to the leasing by Lessee from Lessor of certain premises at that project known as Scottsdale Northsight, located west and contiguous to 87th Street, and south of Raintree Drive in Scottsdale, Arizona; and B. WHEREAS, said Lease allows the Lessee to make certain improvements and alterations, but only to its Premises, and notwithstanding, the Lessee has installed certain cables and conduits in portions of the Building which are outside the Premises; and C. WHEREAS, Lessor is willing to allow said improvements to remain in their existing location, but only subject to the provisions of this Amendment; D. WHEREAS, the parties entered into that Third Amendment to Lease Agreement, dated October 8, 1999, and intend, by the execution of this Amendment to supercede and replace, in its entirety said Third Amendment with this Amendment; THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Notwithstanding anything in the Lease to the contrary, the existing cables, wires and conduits installed by the Lessee in portions outside the Premises at the Building (the "Cables") shall be allowed to remain in their present, existing locations, and in this regard, the Lessor grants its consent to the placement of such cables. 2. Lessee agrees that Lessor, and its contractors, affiliates, employees and agents (collectively, the "Lessor Parties") shall have no responsibility or liability in regard to the repair, maintenance or replacement of said Cables, however, Lessor agrees that the Lessor Parties shall not intentionally nor willfully damage or interfere with the Cables, and Lessor shall not intentionally permit any other tenant at the Building to damage or interfere with the Cables. 3. Further, Lessor and any occupant (including tenants) of portions of the Building in which the cables, wires and conduits are placed shall have a right superior to that of Lessee in regard to possession and access to the areas of the Building in which said cables, wires and conduits are located. Lessee must first obtain the consent of any such occupant, in addition to the consent of the Lessor (which consent shall not be unreasonably withheld), prior to entering into such portions of the Building in which the Cables exist, for the purpose of repair, maintenance, replacement thereof, or any other purpose. Lessor agrees to cooperate with Lessee in obtaining the consent of such occupant, and to exercise any rights reserved by Lessor under the lease with any such occupant, in order to provide access to such areas for Lessee's benefit. 4. Except as expressly consented to by Lessor herein, Lessee agrees to adhere to the provisions of the Lease, and to not place any cables, wires or conduits or any other improvements outside of the Premises without the express prior written consent of the Lessor, which consent shall not be unreasonably withheld. 5. The provisions of Article I. Base Rent of the Lease, which provide for an adjustment to the Base Rent in the event the Total Project Costs actually incurred vary from the Total Project Costs pursuant to the project budget are hereby irrevocably waived by the parties. Accordingly, there shall be no adjustment in the Base Rent and the parties confirm and agree that the Base Rent will be the product of $13.40 or $15.41 (as the case may be, and for the applicable periods, as provided in Article I. Base Rent) times the rentable square feet of the Premises. 6. Except as expressly modified hereby, the parties hereby confirm and ratify the provisions of the Lease, as being enforceable and binding in accordance with its terms. Any capitalized terms used herein and not otherwise defined shall have the meanings provided in the Lease. IN WITNESS WHEREOF, the undersigned parties have executed this Amendment to be effective as of the date first written above. JDA SOFTWARE GROUP, INC., a Delaware corporation By: /s/ Lindsay L. Hoopes ------------------------------------ Its: VICE PRESIDENT OPUS WEST CORPORATION, a Minnesota corporation BY: /s/ Thomas W. Roberts ------------------------------------ Its: THOMAS W. ROBERTS PRESIDENT 05/01/01 05/07/01 05/15/01 05/22/01 FOURTH AMENDMENT TO OFFICE LEASE SCOTTSDALE NORTHSIGHT THIS FOURTH AMENDMENT TO OFFICE LEASE (the "Fourth Amendment") is made and entered into as of the 30 day of May, 2001, by and between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability company ("Lessor"), and JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee"). WHEREAS, Opus West Corporation, a Minnesota corporation, predecessor in interest to Lessor, and Lessee entered into that certain Office Lease dated April 30, 1998, as amended by that certain First Amendment to Office Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated November 23, 1998, that certain Third Amendment to Lease Agreement dated October 8, 1999, and that certain Revised and Restated Third Amendment to Lease Agreement dated October 20, 1999 (as amended, the "Lease"), all in regard to the leasing by Lessee from Lessor of certain premises at that certain project known as Scottsdale Northsight, located west of and contiguous to 87th Street, and south of Raintree Drive, in Scottsdale, Arizona; and WHEREAS, the parties desire to modify the Lease as hereinafter set forth in this Fourth Amendment. NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. The terms and provisions of this Fourth Amendment shall be effective on the date of this Fourth Amendment. All capitalized terms used in this Fourth Amendment, unless otherwise defined herein, shall have the same meanings given to them in the Lease. 2. The second sentence of Article X of the Lease is hereby deleted in its entirety and the following sentence is hereby substituted in its place: Notwithstanding the foregoing, a sublease or assignment to a subsidiary of Lessee, or a sale of all or substantially all of Lessee's assets or an arrangement resulting from a merger or reorganization in which the purchasing or surviving entity, as the case may be, has a "Tangible Net Worth" (defined in Article VI) of not less than Lessee's immediately prior to the purchase, merger or reorganization, shall not require the consent of Lessor. 3. Except as otherwise expressly modified in this Fourth Amendment, the terms and provisions of the Lease are and shall remain in full force and effect. In the event of any conflict or inconsistency between the terms and provisions of the Lease and the terms and provisions of this Fourth Amendment, the terms and provisions of this Fourth Amendment shall govern and control. 4. This Fourth Amendment may be executed in any number of counterparts, all of which together shall be deemed to constitute one instrument, and each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed this Fourth Amendment to Office Lease as of the day and year first above written. Lessor: Lessee: OPUS REAL ESTATE ARIZONA II, L.L.C., a JDA SOFTWARE GROUP, INC., a Delaware limited liability company Delaware corporation By /s/ Wade Lau By /s/ Kristen L. Magnuson ----------------------------------------- ---------------------------- Name: WADE LAU Name: _________________________ Title: VICE PRESIDENT Title:_________________________ 2 05/22/01 05/23/01 FIFTH AMENDMENT TO OFFICE LEASE SCOTTSDALE NORTHSIGHT THIS FIFTH AMENDMENT TO OFFICE LEASE (the "Fifth Amendment") is made and entered into as of the 31 day of May, 2001, by and between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability company ("Lessor"), and JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee"). WHEREAS, Opus West Corporation, a Minnesota corporation, predecessor in interest to Lessor, and Lessee entered into that certain Office Lease dated April 30, 1998, as amended by that certain First Amendment to Office Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated November 23, 1998, that certain Third Amendment to Lease Agreement dated October 8, 1999, that certain Revised and Restated Third Amendment to Lease Agreement dated October 20, 1999, and Lessor and Lessee entered into that certain Fourth Amendment to Office Lease dated May 30, 2001 (as amended, the "Lease"), all in regard to the leasing by Lessee from Lessor of certain premises at that certain project known as Scottsdale Northsight, located west of and contiguous to 87th Street, and south of Raintree Drive, in Scottsdale, Arizona; and WHEREAS, pursuant to Article XXIX of the Lease ("Future Development"), Lessor and Lessee acknowledge that (i) the Office Complex as initially constructed is the first phase of a proposed two-phase integrated commercial real estate development, and (ii) as an accommodation to Lessee and the developer of that parcel, Lessor shall cooperate with Lessee and such developer in the construction of said second phase development on the terms set forth herein. NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. The terms and provisions of this Fifth Amendment shall be effective on the date of this Fifth Amendment. All capitalized terms used in this Fifth Amendment, unless otherwise defined herein, shall have the same meanings given to them in the Lease. 2. The parties acknowledge that Opus West Corporation, a Minnesota corporation, or its designee (collectively, "Developer"), may, but has no obligation to, commence construction of a parking structure (the "Parking Structure") that will serve the Office Complex on an approximate 5-acre parcel that is north of and adjacent to the Property (the "Adjacent Parcel"). Such Parking Structure will (i) consist of two parking levels, (ii) be located entirely on the Adjacent Parcel, and (iii) be set back a minimum of seventy (70) feet from 87th Street. 3. Lessor intends to permit Developer to stage its construction activities in connection with the construction of such Parking Structure on the Property. Lessor will provide Lessee with notice that Lessor has given such permission to Developer prior to the commencement of any such staging activities by Developer. Lessee acknowledges that such staging activities may create a disruption to Lessee's access to parking within the Office Complex and utilization of the Premises. During such construction, Lessor will cause Developer to take commercially reasonable steps to minimize the disruption to Lessee's access to parking on the Property and utilization of the Premises; provided, however, that in no event will Lessor permit Developer to prohibit access to the parking areas serving the Property. Lessor will also not permit Developer to occupy parking spaces on the Property without first (i) obtaining Lessee's consent as to the location and configuration of the parking spaces to be occupied by the Developer, which consent shall not be unreasonably withheld, and (ii) if the parking spaces so occupied are covered parking spaces, providing for substitute covered parking spaces on the Property for the duration of the time Developer occupies such assigned covered parking spaces. 4. If Developer elects to construct the Parking Structure, then at such time as construction of the Parking Structure is completed, Lessor and Developer intend to swap the Adjacent Parcel for a portion of the Property (the "Exchange") so that Developer can construct an additional office building thereon (such portion of the Property is referred to herein as "Phase II"). At such time as Lessor obtains title to the Adjacent Parcel and Developer obtains title to Phase II (the "Exchange Date"), the site plan attached to the Lease as Exhibit A will be deemed deleted and replaced with the site plan attached hereto as Exhibit A. From and after the Exchange Date, Lessee acknowledges and agrees that (i) the phrase "Property" in the Lease will thereafter refer to the Adjacent Parcel and all of the original Property less Phase II, and (ii) the phrase "Office Complex" in the Lease will thereafter refer to the "Property", as amended, and all buildings and improvements and personal property of Lessor used in connection with the operation or maintenance thereof located therein and thereon and the appurtenant parking facilities, including the Parking Structure. 5. At such time as Lessor obtains title to the Adjacent Parcel, Lessor shall give Lessee written notice thereof and the parties agree that Lessor will relocate all of Lessee's parking from the existing surface parking location on the Property to the Parking Structure, which spaces will be located generally within the area depicted on Exhibit B attached hereto. 6. As described above, the parties acknowledge that Developer may commence construction of an office building and related improvements ("Phase II Office Building") on Phase II; provided, however, that Lessor will not permit Developer to construct such Phase II Office Building until such time as Developer has completed construction of the Parking Structure and the Exchange has been completed. 7. The parties acknowledge that this Fifth Amendment has been executed by Lessor and Lessee in anticipation of (i) Developer acquiring title to the Adjacent Parcel, (ii) Developer constructing the Parking Structure thereon, (iii) Developer and Lessor entering into an agreement to swap the Adjacent Parcel for a portion of the Property, and (iv) Developer constructing the Phase II Office Building on Phase II. As a result, the parties agree that the provisions of this Fifth Amendment shall be contingent upon (i) Developer acquiring title to the Adjacent Parcel on or before December 31, 2001, and (ii) Developer and Lessor entering into an agreement to swap the Adjacent Parcel for a portion of the Property on or before December 31, 2001. In the event either of these conditions are not timely satisfied, then in that event the terms and provisions of this Fifth Amendment shall automatically and without further action of the parties be null, void and of no further force or effect. 2 8. Except as otherwise expressly modified in this Fifth Amendment, the terms and provisions of the Lease are and shall remain in full force and effect. In the event of any conflict or inconsistency between the terms and provisions of the Lease and the terms and provisions of this Fifth Amendment, the terms and provisions of this Fifth Amendment shall govern and control. 9. This Fifth Amendment may be executed in any number of counterparts, all of which together shall be deemed to constitute one instrument, and each of which shall be deemed an original. [SIGNATURES APPEAR ON NEXT PAGE] 3 IN WITNESS WHEREOF, the parties have executed this Fifth Amendment to Office Lease as of the day and year first above written. Lessor: Lessee: OPUS REAL ESTATE ARIZONA II, L.L.C., JDA SOFTWARE GROUP, INC., a a Delaware limited liability company Delaware corporation By /s/ Wade Lau By /s/ Kristen L. Magnuson ----------------------------------------- -------------------------- Name: WADE LAU Name: Kristen L. Magnuson Title: VICE PRESIDENT Title: EXEC. VP/CFO 4 EXHIBIT A SITE PLAN [CONCEPTUAL SITE PLAN] Exhibit A (Page 1 of 1) EXHIBIT B PARKING STRUCTURE SITE PLAN [PARKING EXHIBIT] Exhibit B (Page 1 of 1) SIXTH AMENDMENT TO OFFICE LEASE SCOTTSDALE NORTHSIGHT THIS SIXTH AMENDMENT TO OFFICE LEASE (the "Sixth Amendment") is made and entered into as of the ________________ day of August, 2001, by and between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability company ("Lessor"), and JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee"). WHEREAS, Opus West Corporation, a Minnesota corporation, predecessor in interest to Lessor, and Lessee entered into that certain Office Lease dated April 30, 1998, as amended by that certain First Amendment to Office Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated November 23, 1998, that certain Third Amendment to Lease Agreement dated October 8, 1999, that certain Revised and Restated Third Amendment to Lease Agreement dated October 20, 1999, that certain Fourth Amendment to Office Lease dated May 30, 2001, and that certain Fifth Amendment to Office Lease (the "Fifth Amendment") dated May 31, 2001 (as amended, the "Lease"), all in regard to the leasing by Lessee from Lessor of certain premises at that certain project known as Scottsdale Northsight, located west of and contiguous to 87th Street, and south of Raintree Drive, in Scottsdale, Arizona; and WHEREAS, the parties desire to modify the Lease as hereinafter set forth. NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. The terms and provisions of this Sixth Amendment shall be effective on the date of this Sixth Amendment. All capitalized terms used in this Sixth Amendment, unless otherwise defined herein, shall have the same meanings given to them in the Lease. 2. Lessor or Developer (as defined in the Fifth Amendment), may, but have no obligation to, construct the proposed Phase II Office Building (as defined in the Fifth Amendment). 3. The Phase II Office Building, if and when constructed, may consist of a two- or three-story office building in generally the configuration shown on Exhibit "A" attached hereto and incorporated herein. 4. The Parking Structure, if and when constructed by Lessor or Developer and acquired by Lessor, will contain not less than 426 parking spaces, of which at least 200 will be covered. 5. Article XLIII grants Tenant the right to six (6) parking spaces per one thousand (1,000) rentable square feet of the Premises. The Second Amendment to Office Lease dated November 23, 1998 indicates that, for purposes of Article XLIII, the Premises consists of 121,141 rentable square feet. Tenant is currently entitled to 726 parking spaces of which 298 are covered parking spaces. If Developer and Lessor consummate the "Exchange", as described in the Fifth Amendment, Article XLIII of the Lease is automatically amended as of the Exchange Date to: (a) reduce the number of parking spaces the Lessor is obligated to construct on the Property and provide to Lessee from 6 per 1,000 rentable square feet in the Premises to 5.5 per 1,000 rentable square feet in the Premises; and (b) the number of the parking spaces Lessor is obligated to provide to Lessee which must be covered parking spaces remains 298 and may be increased to 328 pursuant to Section 6 below. If Lessee rents additional space from Lessor pursuant to Article XXX of the Lease, Lessor must provide Lessee 5.5 parking spaces per 1,000 rentable square feet in the additional space and approximately thirty-five percent (35%) of such parking spaces must be covered parking spaces. 6. Section 5 of the Fifth Amendment is hereby deleted in its entirety and replaced with the following: 5. Prior to commencement of construction of the Phase II Building, Lessor shall give Lessee written notice thereof and Lessee's parking spaces will automatically be relocated from the surface parking lot located on the Property to a surface parking lot Developer or Lessor will construct on Phase II prior to the Exchange and to the Parking Structure. Lessor must relocate at least 200 of Lessee's covered parking spaces to covered parking spaces in the Parking Structure. The 200 covered parking spaces in the Parking Structure must be located in the easternmost portions of the Parking Structure. Lessor may relocate the remaining 98 covered spaces Lessor is obligated to provide to Lessee either to covered spaces in the Parking Structure or to covered spaces on the surface parking lot to be constructed on Phase II. If Lessor does not relocate all 298 of the covered parking spaces Lessor is obligated to provide to Lessee to covered spaces in the Parking Structure, Lessor must, at no cost to Lessee, increase the number of covered parking spaces Lessor provides to Lessee from 298 to 328. If Lessor is obligated to increase the number of covered parking spaces Lessor provides to Lessee from 298 to 328, Lessor is not obligated to increase the number of total parking spaces Lessor provides to Lessee, so Lessee will have 30 fewer uncovered parking spaces. 7. Except as otherwise expressly modified in this Sixth Amendment, the terms and provisions of the Lease are and shall remain in full force and effect. In the event of any conflict or inconsistency between the terms and provisions of the Lease and the terms and provisions of this Sixth Amendment, the terms and provisions of this Sixth Amendment shall govern and control. 2 8. This Sixth Amendment may be executed in any number of counterparts, all of which together shall be deemed to constitute one instrument, and each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed this Sixth Amendment to Office Lease as of the day and year first above written. Lessor: Lessee: OPUS REAL ESTATE ARIZONA II, JDA SOFTWARE GROUP, INC., a L.L.C., a Delaware limited liability Delaware corporation company By /s/ Wade Lay By /s/ Kristen L. Magnuson ------------------ ---------------------------- Name: WADE LAY Name: KRISTEN L. MAGNUSON Title: VICE PRESIDENT Title: EXECUTIVE VICE PRESIDENT 3 [CONCEPTUAL SITE PLAN] EXHIBIT A SEVENTH AMENDMENT TO OFFICE LEASE SCOTTSDALE NORTHSIGHT THIS SEVENTH AMENDMENT TO OFFICE LEASE (the "Seventh Amendment") is made and entered into as of the 30th day of June, 2003, by and between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability company ("Lessor"), and IDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee"). WHEREAS, Opus West Corporation, a Minnesota corporation, predecessor in interest to Lessor, and Lessee entered into that certain Office Lease dated April 30, 1998, as amended by that certain First Amendment to Office Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated November 23, 1998, that certain Third Amendment to Lease Agreement dated October 8, 1999, that certain Revised and Restated Third Amendment to Lease Agreement dated October 20, 1999, that certain Fourth Amendment to Office Lease dated May 30, 2001, that certain Fifth Amendment to Office Lease (the "Fifth Amendment") dated May 31, 2001, and that certain Sixth Amendment to Office Lease dated as of August 31, 2001 (the "Sixth Amendment") (as amended, the "Lease"), all in regard to the leasing by Lessee from Lessor of certain premises at that certain project known as Scottsdale Northsight, located west of and contiguous to 87th Street, and south of Raintree Drive, in Scottsdale, Arizona; and WHEREAS, the parties desire to modify the Lease as hereinafter set forth. NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. The terms and provisions of this Seventh Amendment shall be effective on the date of this Seventh Amendment. All capitalized terms used in this Seventh Amendment, unless otherwise defined herein, shall have the same meanings given to them in the Lease. 2. The second reference to "December 31, 2001" within Section 7 of the Fifth Amendment is hereby deleted and the phrase "August 31, 2003" is substituted in its place. Accordingly, notwithstanding anything to the contrary contained in the Fifth Amendment or elsewhere in the Lease, the terms and provisions of the Fifth Amendment shall not be deemed null, void and of no force or effect pursuant to the provisions of Section 7 of the Fifth Amendment unless and until Developer and Lessor fail to enter into an agreement to swap the Adjacent Parcel for a portion of the Property on or before August 31, 2003. 3. Notwithstanding anything to the contrary contained in the Lease, the initial term of the Lease is hereby extended through, and shall expire on, December 31, 2014, which extension period is inclusive of the First Renewal Term, as defined in Article XXXI of the Lease. From and after the date of this Seventh Amendment, Article XXXI of the Lease is hereby deleted from the Lease in its entirety; provided, however, that Lessee shall be deemed to have exercised its option to extend the term of the Lease for the First Renewal Term for purposes of Article XXXII of the Lease. 4. Lessee hereby waives Lessee's early termination rights under Article XXXVIII of the Lease. From and after the date of this Seventh Amendment, the terms and provisions of Article XXXVIII of the Lease shall be null, void and of no further force and effect. 5. The parties hereby acknowledge and agree that Lessee timely notified Lessor of Lessee's election to exercise Lessee's Offer Right pursuant to Article XXX of the Lease. Lessor hereby agrees to make the remaining portions of the rentable areas of the Building (the "Additional Space"), which consist of approximately 15,942 rentable square feet in the aggregate, available for lease by Lessee, and Lessee hereby agrees to lease the Additional Space from Lessor, commencing on the date that is sixty (60) days after Lessor delivers possession of the Additional Space to Lessee for Lessee's installation of any tenant improvements therein in accordance with Section 8 of this Seventh Amendment (the "Additional Space Commencement Date") and continuing thereafter throughout the remainder of the term of the Lease. Tenant's lease of the Additional Space will in all events be coterminous with Tenant's lease of the remainder of the Premises, as may be extended under the Lease. 6. Commencing on the Additional Space Commencement Date and continuing thereafter throughout the remainder of the initial term of the Lease (as extended pursuant to Section 3 of this Seventh Amendment), (i) the Premises shall be deemed to consist of the existing Premises and the Additional Space, or 137,083 rentable square feet of space, for all purposes under the Lease, including, without limitation, for purposes of calculating Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses (which pro rata share will be equal to 100% of Real Estate Taxes and Operating Expenses for the Building), and (ii) Lessee will pay Base Rent (based upon a Premises consisting of 137,083 rentable square feet of space) in accordance with the following schedule:
Applicable Portion Annual Rental Rate Per of Term Rentable Square Foot - ------------------ ---------------------- ~~Additional Space Commencement $14.50 Date-12/31/09 01/01/10-12/31/14 $16.25~~
Prior to the Additional Space Commencement Date, the Premises shall be deemed to consist of the existing Premises only, or 121,141 rentable square feet of space, for all purposes under the Lease, including, without limitation, for purposes of calculating Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses. In the event the Additional Space Commencement Date occurs prior to January 1, 2005, then in that event Lessee will pay Base Rent (based upon a Premises consisting of 121,141 rentable square feet of space) in accordance with Article I of the Lease through the Additional Space Commencement Date and thereafter Lessee will pay Base Rent in accordance with subsection (ii) of the second preceding sentence. In the event the Additional Space Commencement Date occurs after January 1, 2005, then in that event Lessee will pay Base Rent (based upon a Premises consisting of 121,141 rentable square feet of space) in accordance with Article I of the Lease through December 31, 2004, Lessee will pay Base Rent (based upon a Premises consisting of 121,141 rentable square feet of space) based upon an annual rental rate of $14.50 per rentable square foot of the Premises commencing on January 1, 2 2005 through the Additional Space Commencement Date and thereafter Lessee will pay Base Rent in accordance with subsection (ii) of the third preceding sentence. 7. Promptly following the expiration of the existing third party leases for portions of the Additional Space and the applicable third party's vacation thereof, Lessor agrees to deliver such portions of the Additional Space to Lessee for Lessee's installation of any tenant improvements therein, which tenant improvements, if any, will in all events be considered "Work" for purposes of Article VIII of the Lease. Notwithstanding anything to the contrary contained in the Lease, Lessor shall have no obligation to construct, or pay any portion of the cost of, any tenant improvements installed in the Additional Space or any portion of the existing Premises in connection with any build out of the Additional Space by Lessee. Lessor hereby agrees to use commercially reasonable efforts to cause those certain third party tenants occupying the Additional Space as of the date of this Seventh Amendment to vacate such tenants' respective spaces promptly following the expiration of such tenants' leases for such spaces. Lessor further agrees that Lessor will not consent to any holdovers by any such tenants in such spaces after the expiration of the respective leases. 8. Pursuant to Section 5 of the Sixth Amendment, from and after the Additional Space Commencement Date, in addition to those parking spaces provided to Lessee based upon a Premises consisting of the existing Premises only, Lessor will provide to Lessee 5.5 parking spaces per 1,000 rentable square feet of the Additional Space, thirty-five percent (35%) of which will be covered parking spaces (or 88 total additional parking spaces [31 of which will be covered parking spaces] based upon an Additional Space consisting of 15,942 rentable square feet). Except as expressly set forth to the contrary in this Section 8, all such parking spaces will be provided to Lessee pursuant to the terms and provisions of the Lease, including, without limitation, Article XLIII thereof. 9. Commencing on the Additional Space Commencement Date, based upon the additional parking spaces to be provided to Lessee pursuant to Section 8 of this Seventh Amendment, Section 6 of the Sixth Amendment is hereby deleted in its entirety and the following text is substituted in its place: 6. Prior to commencement of construction of the Phase II Building, Lessor shall give Lessee written notice thereof and Lessee's parking spaces will automatically be relocated from the surface parking lot located on the Property to a surface parking lot Developer or Lessor will construct on Phase II prior to the Exchange and to the Parking Structure. Lessor must relocate at least 210 of Lessee's covered parking spaces to covered parking spaces in the Parking Structure. The 210 covered parking spaces in the Parking Structure must be located in the easternmost portions of the Parking Structure. Lessor may relocate the remaining 119 covered spaces Lessor is obligated to provide to Lessee either to covered spaces in the Parking Structure or to covered spaces on the surface parking lot to be constructed on Phase II. If Lessor does not relocate all 329 of the covered parking spaces Lessor is obligated to provide to Lessee to covered spaces 3 in the Parking Structure, Lessor must, at no cost to Lessee, increase the number of covered parking spaces Lessor provides to Lessee from 329 to 359. If Lessor is obligated to increase the number of covered parking spaces Lessor provides to Lessee from 329 to 359, Lessor is not obligated to increase the number of total parking spaces Lessor provides to Lessee, so Lessee will have 30 fewer uncovered parking spaces. 10. Tenant represents that Tenant has dealt with no brokers in connection with this Seventh Amendment other than Lee & Associates Arizona Commercial Real Estate Services Com. and Opus West Management Corporation (collectively, the "Brokers") and that insofar as Tenant knows, no other broker negotiated or participated in negotiations of this Seventh Amendment or is entitled to any commission in connection therewith. Landlord and Tenant agree that no broker (other than the Brokers) shall be entitled to any commission in connection with the expansion of the Premises. Tenant shall defend, indemnify and hold harmless Landlord from and against any and all claims of brokers, finders or any like third party claiming any right to commission or compensation by or through acts of Tenant in connection herewith other than the Brokers. Landlord shall pay the Brokers pursuant to a separate agreement and shall defend, indemnify and hold harmless Tenant from and against any and all claims of brokers, finders or any like third party claiming any right to commission or compensation by or through acts of Landlord in connection herewith including the Brokers. 11. Except as otherwise expressly modified in this Seventh Amendment, the terms and provisions of the Lease are and shall remain in full force and effect. In the event of any conflict or inconsistency between the terms and provisions of the Lease and the terms and provisions of this Seventh Amendment, the terms and provisions of this Seventh Amendment shall govern and control. 12. This Seventh Amendment may be executed in any number of counterparts, all of which together shall be deemed to constitute one instrument, and each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed this Seventh Amendment to Office Lease as of the day and year first above written. Lessor: Lessee: OPUS REAL ESTATE ARIZONA II, JDA SOFTWARE GROUP, INC., a L.L.C., a Delaware limited liability Delaware corporation company By /s/ Andrew C. Deckas By /s/ Kristen E. Magnuson -------------------- ----------------------- Name: Andrew C. Deckas Name: Kristen E. Magnuson Title: Vice President Title: EVP/CFO 4 [OPUS LETTERHEAD] June 30, 2003 VIA FEDERAL EXPRESS JDA Software Group, Inc. 14400 North 87th Street Scottsdale, Arizona 85260 Attention: Kristen L. Magnuson, CFO Re: Office Lease Scottsdale Northsight II dated May 25, 2001 by and between Opus West Corporation, a Minnesota corporation ("Opus West"), and JDA Software Group, Inc., a Delaware corporation ("JDA"), as terminated by that certain Letter Agreement dated September 19, 2001 between Opus West and JDA (as terminated, the "Lease") Ladies and Gentlemen: You will recall that Articles XXIX (Expansion Right) and XXXV (First Right of Offer) of the Lease survived the termination thereof. In light of the fact that Opus West presently plans to acquire the Property and construct the Building thereon (the "Phase II Building"), the purpose of this letter agreement (the "Letter Agreement") is to confirm the understanding between the parties in connection with, and to restate in their entirety, JDA's surviving rights under the Lease. Capitalized terms used in this Letter Agreement and not otherwise defined herein shall have the meanings given to them in the Lease. The parties hereto acknowledge and agree that the following rights expressly survived the termination of the Lease and, assuming Opus West acquires the Property and constructs the Phase II Building thereon, will remain in full force and effect pursuant to the terms and provisions of this Letter Agreement: 1. EXPANSION RIGHT: Subject to the terms and conditions set forth in this Section 1, the owner of the Phase II Building (the "Phase II Owner") grants to JDA the right ("Offer Right") to be offered by the Phase II Owner the opportunity to lease an approximately 11,000 rentable square foot contiguous block of space in the Phase II Building (the "Expansion Space"), which Expansion Space will be provided to JDA, if at all, between the sixtieth (60th) and seventy-second (72nd) calendar month after the date of issuance of all governmental approvals of substantial completion of the Phase II Building shell (the "Offer Right Period"). The location of such space will be determined by Landlord in Landlord's sole and absolute discretion. At least twelve (12) months prior to the date that the Phase II Owner will make the Expansion Space available to JDA, the Phase II Owner will give JDA written notice of the availability and location thereof and the date upon which the Expansion Space can be delivered to JDA (the "Expansion Space Delivery Date"). At least nine (9) months prior to the Expansion Space Delivery Date, JDA shall notify the Phase II Owner in writing whether JDA elects to exercise its right to lease the Expansion Space on the terms of this Section 1. If JDA elects not to lease the Expansion Space, the provisions of this Section 1 shall be null, void and of no further force or effect. Failure of JDA to timely respond in writing will be deemed an election by JDA not to lease such [OPUS LETTERHEAD] Expansion Space from the Phase II Owner. Within thirty (30) days of receipt of JDA's notice indicating JDA's decision to lease the Expansion Space, the Phase II Owner shall provide JDA a form of lease in regard to JDA's lease of the Expansion Space. The lease of the Expansion Space shall commence upon delivery of the Expansion Space to JDA, shall expire on December 31, 2014 and Base Rent for the Expansion Space will be at $17.00 per rentable square foot of the Expansion Space for months one (1) through thirty (30) of such term and at $18.50 per rentable square foot of the Expansion Space for months thirty-one (31) through the expiration of such term. The Expansion Space will be provided to JDA in "as is" condition without representation or warranty by the Phase II Owner and without any obligation on the Phase II Owner's part to construct any tenant improvements therein or to pay any brokerage commission relating thereto. With respect to tenant improvements, if the Expansion Space is in "shell" condition (e.g., the Expansion Space has not previously been improved for occupancy by a tenant on the Expansion Space Delivery Date), the Phase II Owner shall provide to JDA a tenant improvement allowance relating to the Expansion Space at then fair market rates for similar buildings, taking into account the term of the lease of the Expansion Space, the condition of the Expansion Space as of the date of commencement of JDA's leasing thereof, and other relevant factors. If the Expansion Space has previously been improved for occupancy by a tenant, no tenant improvement allowance will be payable with respect thereto. 2. FIRST RIGHT OF OFFER: Subject to the terms and conditions set forth in this Section 2, the Phase II Owner grants to JDA the first right ("First Right") to be offered by the Phase II Owner to lease all or a portion of the leasable area in the Phase II Building. If, at any time while this First Right is in effect, the Phase II Owner should intend to lease any portion of such space to a third party tenant (the "Available Space"), then the Phase II Owner shall first offer to lease the Available Space to JDA and provide to JDA the terms of the Phase II Owner's offer to such third party (the "Third Party Terms"). In the event the Phase II Owner offers to Lease the Available Space to JDA pursuant to this Section 2, JDA shall notify the Phase II Owner in writing within ten (10) business days of its receipt of the Phase II Owner's notice whether JDA desires to lease the Available Space from the Phase II Owner on the Third Party Terms. If JDA notifies the Phase II Owner in writing within such ten-business day period that JDA does not desire to lease the Available Space, or if JDA does not respond in writing to the Phase II Owner's notice within such ten-business day period, then, in either of the above instances, the Phase II Owner's obligations under this Section 2 shall automatically and forever terminate as to the Available Space and the Phase II Owner shall thereafter be entitled to lease the Available Space to the existing, or any future third party tenant, free of any rights of JDA therein. If JDA notifies the Phase II Owner in writing within such ten-business day period that JDA desires to lease the Available Space from the Phase II Owner on the Third Party Terms, the parties shall thereafter execute a form of lease in regard to JDA's lease of the Available Space (which lease form shall provide for JDA's lease of the Available Space on the Third Party Terms). Subject to the termination thereof as described in the second preceding sentence, the First Right described herein is intended by the parties to be valid through the end of the sixtieth (60th) calendar month after the date of issuance of all governmental approvals of substantial completion of the Phase II Building shell and shall be of no further force or effect thereafter. The purpose of this Section 2 is to provide notice to JDA so that JDA may be in a position to lease portions of the Phase II Building on a competitive basis with others, and, notwithstanding anything to the contrary contained in this Section 2, nothing in this Section shall be deemed to be an option or right of first refusal. Page 2 [OPUS LETTERHEAD] 3. PHASE II BUILDING NAME/SIGNAGE: The Phase II Owner hereby agrees that the Phase II Owner will not permit the following tenants to place signage on the Phase II Building: Accenture, AC Nielson Corporation, Armature Ltd., GERS, Inc., i2 Technologies, Information Resources, Inc., KhiMetrics, Inc., Manugistics Group, Inc., Marketmax, Inc., nsb Retail Systems PLC, Oracle Corporation, Retek, Inc., SAP AG, SVI Holdings, Inc., TCI Solutions, Inc. Notwithstanding the foregoing, in the event that JDA has not leased space in the Phase II Building on or before the expiration of the sixtieth (60th) month after the date of issuance of all governmental approvals of substantial completion of the Phase II Building shell, then in that event the terms and provisions of this Section 3 shall immediately thereafter terminate automatically and without further action of the parties. 4. TRANSFER OF PHASE II OWNER'S INTEREST: If Opus West or any subsequent Phase II Owner transfers (other than for collateral security purposes) its ownership interest in the Phase II Building, the transferor is automatically relieved of all obligations on the part of the Phase II Owner accruing under this Letter Agreement from and after the date of such transfer, provided that the transferee agrees in writing to assume such obligations. The Phase II Owner's covenants and obligations in this Letter Agreement bind each successive Phase II Owner only during and with respect to its respective period of ownership. In the event that Opus West elects to transfer its ownership interest in the Phase II Building to a third party, Opus West agrees to disclose the terms and provisions of this Letter Agreement to such third party in connection with such transfer. Assuming that the foregoing rights correctly describe your understanding of those rights granted to JDA under the Lease that expressly survived the termination thereof, please have the appropriate JDA representative acknowledge its agreement with the terms and provisions herein by signing this letter in the space provided below and returning a copy thereof to my attention via facsimile at 602-468-7045. Page 3 [OPUS LETTERHEAD] If you have questions or comments concerning any of the matters contained herein, do not hesitate to contact me. Very truly yours, OPUS WEST CORPORATION, a Minnesota corporation By /s/ Thomas W. Roberts --------------------- Name: Thomas W. Roberts Title: President AGREED AND ACKNOWLEDGED this 30th day of June, 2003: JDA SOFTWARE GROUP, INC., a Delaware corporation By /s/ Kristen R. Magnuson ----------------------- Name: Kristen R. Magnuson Title: EVP/CFO cc: Daniel T. Haug, Esq. (via interoffice delivery) Mr. Jeff Roberts (via interoffice delivery) Mr. Adrian Evarkiou (via interoffice delivery) Mr. Gregory L. Mast (via facsimile: 602-530-8500) Page 4 EX-31.1 4 p68102exv31w1.txt EXHIBIT 31.1 EXHIBIT 31.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER REQUIRED BY RULES 13a - 15(e) OR 15d-15(e) OF THE SECURITIES EXCHANGE ACT OF 1934 ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Hamish N. Brewer, the Chief Executive Officer of JDA Software Group, Inc. certify that: 1. I have reviewed this quarterly report on Form 10-Q of JDA Software Group, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal controls over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a) All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls over financial reporting. Date: August 13, 2003 By: /s/ Hamish N. Brewer ------------------------------ Hamish N. Brewer Chief Executive Officer 52 EX-31.2 5 p68102exv31w2.txt EXHIBIT 31.2 EXHIBIT 31.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER REQUIRED BY RULES 13a - 15(e) OR 15d-15(e) OF THE SECURITIES EXCHANGE ACT OF 1934 ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Kristen L. Magnuson, the Executive Vice President and Chief Financial Officer of JDA Software Group, Inc. certify that: 1. I have reviewed this quarterly report on Form 10-Q of JDA Software Group, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the registrant and have: a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b. Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c. Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal controls over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function): a. All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls over financial reporting. Date: August 13, 2003 By: /s/ Kristen L. Magnuson -------------------------- Kristen L. Magnuson Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) 53 EX-32.1 6 p68102exv32w1.txt EXHIBIT 32.1 EXHIBIT 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER REQUIRED BY SECTION 1350 OF THE UNITED STATES CODE ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 I, Hamish N. Brewer, Chief Executive Officer of JDA Software Group, Inc. (the "Registrant"), do hereby certify in accordance with 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, based on my knowledge: (1) the Quarterly Report on Form 10-Q of the Registrant, to which this certification is attached as an exhibit (the "Report"), fully complies with the requirements of section 13(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant. Dated: August 13, 2003 /s/ Hamish N. Brewer -------------------- Hamish N. Brewer Chief Executive Officer 54 EX-32.2 7 p68102exv32w2.txt EXHIBIT 32.2 EXHIBIT 32.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER REQUIRED BY SECTION 1350 OF THE UNITED STATES CODE ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 I, Kristen L. Magnuson, Executive Vice President and Chief Financial Officer of JDA Software Group, Inc. (the "Registrant"), do hereby certify in accordance with 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, based on my knowledge: (1) the Quarterly Report on Form 10-Q of the Registrant, to which this certification is attached as an exhibit (the "Report"), fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant. Dated: August 13, 2003 /s/ Kristen L. Magnuson --------------------------- Kristen L. Magnuson Executive Vice President and Chief Financial Officer 55 -----END PRIVACY-ENHANCED MESSAGE-----

•		Retail Enterprise Systems include corporate level merchandise management systems that enable retailers to optimize their inventory control, product mix, pricing and promotional strategies, automate demand forecasting and replenishment, and enhance the productivity and accuracy of warehouse processes. In addition, Retail Enterprise Systems include a comprehensive set of tools for analyzing business results and trends, tracking customer shopping patterns, space management, trade allowance and promotional program management, and for monitoring strategic plans and tactical decisions.

•		In-Store Systems include point-of-sale, e-commerce and back office applications that enable retailers to capture, analyze and transmit certain sales, store inventory and other operational information to corporate level merchandise management systems using hand-held, radio frequency devices, point-of-sale workstations or via the Internet.

•		Collaborative Solutions include applications that enable business-to-business collaborative planning, forecasting and replenishment between retailers and their suppliers. Collaborative Solutions, which currently include portions of Retail Enterprise Systems applications that can be used by suppliers as well as collaboration specific solutions, enable retailers and their suppliers to optimize the sharing of plans, information and supply chain decisions between trading partners in such areas as inventory replenishment, marketing/promotions, sales planning/execution and category management.

			however, certain judgments affect the application of our revenue policy.

			We license software under non-cancelable agreements and provide related services, including consulting, training and customer support. We recognize revenue in accordance with Statement of Position 97-2 (“SOP 97-2”), Software Revenue Recognition, as amended and interpreted by Statement of Position 98-9, Modification of SOP 97-2, Software Revenue Recognition, with respect to certain transactions, as well as Technical Practice Aids issued from time to time by the American Institute of Certified Public Accountants. We adopted Staff Accounting Bulletin No. 101 (“SAB 101”), Revenue Recognition in Financial Statements, during first quarter 2000. SAB 101 provides further interpretive guidance for public companies on the recognition, presentation, and disclosure of revenue in financial statements. The adoption of SAB 101 did not have a material impact on our licensing or revenue recognition practices.

			Software license revenue is recognized when a license agreement has been signed, the software product has been delivered, there are no uncertainties surrounding product acceptance, the fees are fixed and determinable, and collection is considered probable. If a software license contains an undelivered element, the vendor-specific objective evidence (“VSOE”) of fair value of the undelivered element is deferred and the revenue recognized once the element is delivered. The undelivered elements are primarily training, consulting and maintenance services. VSOE of fair value for training and consulting services is based upon standard hourly rates charged when those services are sold separately. VSOE of fair value for maintenance is the price the customer will be required to pay when it is sold separately (that is, the renewal rate). In addition, if a software license contains customer acceptance criteria or a cancellation right, the software revenue is recognized upon the earlier of customer acceptance or the expiration of the acceptance period or cancellation right. Payments for our software licenses are typically due in installments within twelve months from the date of delivery. Although infrequent, where software license agreements call for payment terms of twelve months or more from the date of delivery, revenue is recognized as payments become due and all other conditions for revenue recognition have been satisfied.

			Consulting and training services are separately priced, are generally available from a number of suppliers, and are not essential to the functionality of our software products. Consulting services, which include project management, system planning, design and implementation, customer configurations, and training are billed on both an hourly basis and under fixed price contracts. Consulting services revenue billed on an hourly basis is recognized as the work is performed. Training revenues are recognized when the training is provided and is included in consulting revenues in the Company’s consolidated statements of income. Under fixed price contracts, consulting services revenue is recognized using the percentage of completion method of accounting by relating hours incurred to date to total estimated hours at completion.

			We have from time to time provided software and consulting services under fixed price contracts that require the achievement of certain milestones and payment terms in these contracts are generally tied to customer acceptance of the milestones. The revenue under such arrangements is recognized as the milestones are achieved or upon customer acceptance. We believe that milestones are a proper measure of progress under these contracts, as the milestones approximate the percentage of completion method of accounting.

			Customer support services include post contract support and the rights to unspecified upgrades and enhancements. Maintenance revenues from ongoing customer support services are billed on a monthly basis and recorded as revenue in the applicable month, or on an annual basis with the revenue being deferred and recognized ratably over the maintenance period. If an arrangement includes multiple elements, the fees are allocated to the various elements based upon VSOE of fair value, as described above.

	•		Accounts Receivable. Consistent with industry practice and to be competitive in the retail software marketplace, we typically provide installment payment terms on most software license sales. Software licenses are generally due in installments within twelve months from the date of delivery. All significant customers are reviewed for creditworthiness before the Company licenses its software and we do not sell our software or recognize any license revenue unless we believe that collection is probable in accordance with the requirements of paragraph 8 in SOP 97-2. We have a history of collecting software payments

			when they come due without providing refunds or concessions. Consulting services are billed bi-weekly and maintenance services are billed annually or monthly. If a customer becomes significantly delinquent or its credit deteriorates, we put the accounts on hold and do not recognize any further services revenue (and in most cases we withdraw support and/or our implementation staff) until the situation has been resolved.

			We do not have significant billing or collection problems. Although infrequent and unpredictable, from time to time certain of our customers have filed bankruptcy and we have been required to refund the pre-petition amounts collected and settle for less than the face value of its remaining receivable pursuant to a bankruptcy court order. In these situations, as soon as it becomes probable that the net realizable value of the receivable is impaired, we provide reserves on the receivable. In addition, we monitor economic conditions in the various geographic regions in which it operates to determine if general reserves or adjustments to its credit policy in a region are appropriate for deteriorating conditions that may impact the net realizable value of our receivables.

	•		Intangible Assets. Our business combinations typically result in goodwill and other intangible assets, which affects the amount of future period amortization expense and possible impairment expense that we will incur. The determination of the value of such intangible assets and the annual impairment tests require management to make estimates of future revenues, customer retention rates and other assumptions that affect our consolidated financial statements.

	•		Income Taxes. Our income tax policy records the estimated future tax effects of temporary differences between the tax basis of assets and liabilities and amounts reported in the consolidated balance sheets, as well as operating loss and tax credit carry-forwards. We follow specific and detailed guidelines regarding the recoverability of any tax assets recorded on the balance sheet and provide any necessary allowances as required.

	•		Stock-Based Compensation. We do not record compensation expense for options granted to our employees as all options granted under our stock option plans have an exercise price equal to the market value of the underlying common stock on the date of grant. As permitted under Statement of Financial Accounting Standards No. 123, Accounting for Stock-Based Compensation (“SFAS No. 123”), we have elected to continue to apply the provisions of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees, and provide pro forma disclosure on a quarterly and annual basis of net income (loss) and net income (loss) per common share for employee stock option grants made as if the fair-value method defined in SFAS No. 123 had been applied.

	•		Demand for our software products and services, including the size and timing of individual contracts and our ability to recognize revenue with respect to contracts signed in the quarter, particularly with respect to our significant customers;

	•		Changes in the length of our sales cycle;

	•		Competitive pricing pressures and the competitive success or failure on significant transactions;

	•		Customer order deferrals resulting from the anticipation of new products, economic uncertainty, disappointing operating results by the customer, or otherwise;

	•		The timing of new software product and technology introductions and enhancements to our software products or those of our competitors, and market acceptance of our new software products and technology;

	•		Changes in our operating expenses;

	•		Changes in the mix of domestic and international revenues, or expansion or contraction of international operations;

	•		Our ability to complete fixed price consulting contracts within budget;

	•		Foreign currency exchange rate fluctuations;

	•		Operational issues resulting from corporate reorganizations (see “We May Encounter Difficulties Successfully Implementing Our Recent Corporate Reorganization”); and

	•		Lower-than-anticipated utilization in our consulting services group as a result of reduced levels of software sales, reduced implementation times for our products, changes in the mix of demand for our software products, or other reasons.

	•		Cancelled or delayed purchasing decisions related to the September 11 terrorist attack and the uncertainty related to potential future terrorist attacks and the war with Iraq;

	•		The millennium change;

	•		Conversion to the Euro currency;

	•		External and internal marketing issues;

	•		Our announcement of our reduced visibility and increased uncertainty concerning future demand for our products;

	•		Increased competition;

	•		Elongated sales cycles;

	•		A limited number of reference accounts with implementations in the early years of product release;

	•		Certain design and stability issues in early versions of our products; and

	•		Lack of desired features and functionality.

	•		The possibility that prospective customers will refrain from purchasing the current versions of products to be re-written because they are waiting for the .Net Platform versions;

	•		The possibility that our .Net Platform beta customers will not become favorable reference sites;

	•		Adequate scalability of the .Net Platform for our largest customers;

	•		The ability of our development staff to learn how to efficiently and effectively develop products using the .Net Platform;

	•		Our ability to transition our customer base onto the .Net Platform when it is available;

	•		Microsoft’s ability to achieve market acceptance of the .Net platform; and

	•		Microsoft’s continued commitment to enhancing and marketing the .Net platform.

	•		Currency fluctuations;

	•		Higher operating costs due to local laws or regulations;

	•		Unexpected changes in employment and other regulatory requirements;

	•		Tariffs and other trade barriers;

	•		Costs and risks of localizing products for foreign countries;

	•		Longer accounts receivable payment cycles in certain countries;

	•		Potentially negative tax consequences;

	•		Difficulties in staffing and managing geographically disparate operations;

	•		Greater difficulty in safeguarding intellectual property, licensing and other trade restrictions;

	•		Repatriation of earnings;

	•		The burdens of complying with a wide variety of foreign laws;

	•		Anti-American sentiment due to the war with Iraq, and other American policies that may be unpopular in certain regions;

	•		The effects of regional and global infectious diseases such as SARS; and

	•		General economic conditions in international markets.

	•		We may have difficulty assimilating the operations and personnel of the acquired company;

	•		We may have difficulty effectively integrating the acquired technologies or products with our current products and technologies;

	•		Our ongoing business may be disrupted by transition and integration issues;

	•		We may not be able to retain key technical and managerial personnel from the acquired business;

	•		We may be unable to achieve the financial and strategic goals for the acquired and combined businesses;

	•		We may have difficulty in maintaining controls, procedures and policies during the transition and integration;

	•		Our relationships with partner companies or third-party providers of technology or products could be adversely affected;

	•		Our relationships with employees and customers could be impaired;

	•		Our due diligence process may fail to identify significant issues with product quality, product architecture, legal contingencies, and product development, among other things;

	•		We may be subject to as a successor, certain liabilities of our acquisition targets; and

	•		We may be required to sustain significant exit charges if products acquired in business combinations are unsuccessful.

	(a)		Exhibits: See Exhibit Index

	(b)		Reports on Form 8-K

			We filed a Form 8-K dated April 2, 2003 with the Securities and Exchange Commission on April 24, 2003 to furnish copies of our April 2, 2003 press release announcing preliminary financial results for the quarter ended March 31, 2003, our April 21, 2003 press release announcing final financial results for the quarter ended June 30, 2002, and the transcript of our First Quarter 2003 Earnings Release Conference Call. In addition, the Form 8-K included a discussion of the non-GAAP measure of earnings (loss) per share provided in the April 21, 2003 press release.

			We filed a Form 8-K dated July 21, 2003 with the Securities and Exchange Commission on July 21, 2003 to furnish a copy of our July 21, 2003 press release announcing financial results for the quarter

			ended June 30, 2003. In addition, the Form 8-K included a discussion of the non-GAAP measure of earnings (loss) per share provided in the July 21, 2003 press release.

			In accordance with the procedural guidance in SEC Release No. 33-8216, the information provided in each of these reports on Form 8-K and the Exhibits attached thereto was furnished under “Item 9. Regulation FD Disclosure” rather than under “Item 12. Disclosure of Results of Operations and Financial Condition.” The information provided in each of these reports on Form 8-K and the Exhibits attached thereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section, nor shall these reports be deemed incorporated by reference in any filing under the Securities Act of 1933, except as expressly set forth by specific reference in such filing.

			We filed a Form 8-K dated August 4, 2003 with the Securities and Exchange Commission on August 5, 2003 to announce that Hamish N. Brewer, our President since April 2001 and as a senior officer of the Company since 1996, has been promoted to Chief Executive Officer. He succeeds James D. Armstrong who will continue as Chairman of the Board. As Chairman, Mr. Armstrong will retain his active leadership role, focusing on strategic planning, merger and acquisition opportunities, major product direction and key customer relationships.

¨¨¨		Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2001, as filed on August 14, 2001.

¨¨¨¨		Incorporated by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001, as filed on March 29, 2002.

(1)		Management contracts or compensatory plans or arrangements covering executive officers or directors of the Company.

(2)		Confidential treatment has been granted as to part of this exhibit.

(3)		Applies to James D. Armstrong.

(4)		Applies to Hamish N. Brewer and Gregory L. Morrison.

(5)		Applies to Hamish N. Brewer, Peter J. Charness, Scott D. Hines, Gregory L. Morrison and David J. Tidmarsh.

(6)		Applies to Senior Executive Officers with the exception of James D. Armstrong and Kristen L. Magnuson.