EXHIBIT 99.3(e)(5)
AMENDMENT TO THE
J.D. EDWARDS & COMPANY
MANAGEMENT CHANGE IN CONTROL PLAN
The J.D. Edwards & Company Management Change in Control Plan is hereby
amended, effective immediately before the Effective Time (as that term is
defined in the Agreement and Plan of Merger by and among J.D. Edwards & Company,
PeopleSoft, Inc. and J.D. Edwards Acquisition Corporation (the "Merger
Agreement")), and contingent upon the consummation of the transactions
contemplated by the Merger Agreement:
1. Article II(5) is deleted and replaced with:
"Cause" shall mean:
(i) a material act of dishonesty by Participant in connection with
the Participant's employment with the Company;
(ii) the Participant's conviction of, or plea of nolo contendere
to, a felony;
(iii) the Participant's failure to perform reasonably assigned
duties after the Participant has received a written demand for
performance which includes reasonable detail describing his or
her nonperformance;
(iv) the Participant's material breach of his or her obligations as
an officer/employee of the Company; or
(v) the Participant's failure to materially comply with the
Company's policies.
With respect to clauses (iii), (iv) and (v), such actions shall not
constitute Cause if they are cured by the Participant within thirty
(30) days following delivery to the Participant of a written
explanation specifying the basis for the Company's belief that it has
Cause, provided that the Company deems such action capable of being
cured.
2. Article II(6) is amended by adding the following sentence to the end
thereof:
Notwithstanding any other provision of this Plan to the contrary, in no
event shall a Change in Control be deemed to occur with respect to any
event that occurs after the consummation of the transactions
contemplated by the Merger Agreement.
3. A new Article II(6A) is added to read as follows:
"Closing" shall mean the closing of the transactions contemplated by
the Merger Agreement.
4. Article II(13) is deleted and replaced with:
"Involuntary Termination" shall mean
(i) the occurrence of one or more of the following ("Involuntary
Termination Events"):
(a) the significant reduction of the
Participant's title, duties or
responsibilities relative to those in effect
immediately prior to such reduction
(excluding any reasonable changes that are
the direct and necessary result of the
Company becoming a subsidiary in a larger
controlled group of corporations);
(b) a reduction in the annual base salary or in
the maximum dollar amount of potential
annual cash bonuses relative to the annual
base salary and maximum dollar amount of
potential annual cash bonuses as in effect
immediately prior to such reduction, unless
after such reduction the Participant's
annual base salary and potential annual cash
bonus remain within the range of annual
salaries and cash bonuses for
similarly-situated employees of Palomino or
its affiliates;
(c) a failure by the Company to provide the
Participant with an employee benefits
package that is substantially comparable in
the aggregate to the employee benefits
package provided to all employees of the
Company or its affiliates who are of a
similar rank or level as the Participant; or
(d) the relocation of the Participant to a
facility or a location more than 50 miles
from the Participant's then present
location, provided that Participant's
commute is longer in miles as a result of
the relocation compared to Participant's
commute to the current location; and
(ii) an Involuntary Termination Event continues for more than
thirty (30) days after delivery of written notice by the
Participant to the Company specifying the circumstances of the
alleged Involuntary Termination, which notice must be
delivered to the Company within five (5) business days of the
Involuntary Termination Event, and
(iii) the Participant resigns from all positions with the Company or
its successor within ten (10) days of the expiration of
Company's 30 day cure period, where such Involuntary
Termination Event is still ongoing.
Notwithstanding any other provision of this Plan to the contrary, in no
event shall a Participant be entitled to any benefits hereunder unless
the Participant actually terminates employment with the Company as a
result of a reason described in this provision.
5. A new Article II(13A) is added to read as follows:
"Merger Agreement" shall mean the Agreement and Plan of Merger by and
among J.D. Edwards & Company, PeopleSoft, Inc. and J.D. Edwards
Acquisition Corporation.
6. Article IV(1) is deleted and replaced with :
1. Change in Control Benefits.
(a) If the Participant is terminated without Cause upon
the Closing, then, subject to Article V hereof, he or she shall receive
the benefits provided under the Plan prior to its amendment pursuant
hereto (and shall not receive any additional benefits as
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set forth herein). Provided, however, that notwithstanding the
Participant's Notice of Participation, Company-Paid Coverage as defined
in subparagraph (d)(ii) below shall be provided to a Participant
described in the preceding sentence for a period that ends on the
earlier of (i) six (6) months, or (ii) the date that the Participant
and his or her covered dependents become covered under another
employer's employee benefit plans providing benefits and levels of
coverage comparable to the Company-Paid Coverage. For purposes of Title
X of the Consolidated Budget Reconciliation Act of 1985 ("COBRA"), the
date of the "qualifying event" for the Participant and his or her
covered dependents shall be the date upon which Company-Paid Coverage
terminates.
(b) If a Participant remains employed by the Company
immediately following the Closing, then, subject to Article V hereof,
he or she shall be paid twenty-five percent (25%) of the Participant's
Severance Payment. Such amount shall be paid by the Company to the
Participant in a single lump sum payment, less applicable tax
withholding, within 30 days after the Closing.
(c) If the Participant remains employed by the Company
one year after the Closing then, subject to Article V hereof, he or she
shall be paid an additional twenty-five percent (25%) of the
Participant's Severance Payment. Such amount shall be paid by the
Company to the Participant in a single lump sum payment, less
applicable tax withholding, within 30 days after one year after the
Closing.
(d) (i) If the Participant's employment is
terminated without Cause or as a result of an Involuntary
Termination Event, at any time within the fifteen (15) month
period following the Closing then, subject to Article V
hereof, he or she shall be paid fifty percent (50%) of the
Participant's Severance Payment. Such amount shall be paid by
the Company to the Participant in a single lump sum payment,
less applicable tax withholding, within 30 days after the
Participant's termination of employment, provided that
Participant has executed and not revoked a release as required
by Article III(1) of the Plan. In addition, if the Participant
does not receive the payment described in paragraph (c) above
because he or she was terminated as a result of an Involuntary
Termination Event or by the Company without Cause prior to the
time the payment was made, he or she shall also be paid the
amount set forth in paragraph (c).
(ii) If the Participant is entitled to benefits
pursuant to subparagraph (d)(i) above, then the Company shall
continue to provide the Participant with medical, dental,
vision, disability and life insurance coverage and employee
assistance programs (or such comparable alternative benefits
as the Company may, in its discretion, determine to be
sufficient to satisfy its obligations to the Participant under
this Plan) that are no less favorable to the Participant than
such coverage as was provided to the Participant immediately
prior to the Change in Control, with the same percentage of
any premiums or costs for such coverage paid for by the
Company as was paid for by the Company on behalf of such
Participant immediately prior to the Change in Control (the
"Company-Paid Coverage"). Company-Paid Coverage shall be
provided to the Participant for a
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period that ends on the earlier of (i) six (6) months, or (ii)
the date that the Participant and his or her covered
dependents become covered under another employer's employee
benefit plans providing benefits and levels of coverage
comparable to the Company-Paid Coverage. For purposes of Title
X of the Consolidated Budget Reconciliation Act of 1985
("COBRA"), the date of the "qualifying event" for the
Participant and his or her covered dependents shall be the
date upon which Company-Paid Coverage terminates. The Company
shall provide the Participant with job outplacement services
at a level commensurate with his or her position for the six
(6) month period following his or her termination from the
Company up to a maximum of ten thousand dollars ($10,000).
Company-Paid Coverage shall be provided at the Company's
discretion, under either, (i) the Company's plans or (ii)
other plans or arrangements secured by the Company no less
favorable to the Participant and his or her dependents.
With respect to paragraphs (a) through (d) hereof, and notwithstanding
any other provision of this Plan to the contrary, the information
contained in a Participant's Notice of Termination is (i) superceded by
the Plan as amended, and (ii) shall be of no effect except with respect
to designating Participant as a Participant in the Plan and specifying
each Participant's Severance Payment Percentage (and, in particular and
without limitation, not effective as to any reference thereunder to a
"Benefits Continuation Period," "Severance Payment Period" or "Vesting
Continuation Period"). In addition, benefits hereunder shall be in lieu
of any other severance or severance-type benefits to which the
Participant may be entitled under any employment agreement or any other
Company-sponsored plan, practice or arrangement, and shall be reduced
dollar-for-dollar by any required payments made in connection with the
Participant's termination of employment pursuant to any applicable law
(including without limitation the Worker Adjustment and Retraining
Notification Act or any similar law of any jurisdiction).
7. Article IV(2) is amended to read as follows:
2. Resignation; Termination For Cause. If the Participant's employment
terminates by reason of the Participant's resignation, or if the
Company terminates the Participant for Cause, then the Participant
shall not be entitled to receive severance or other benefits under this
Plan and shall be entitled only to those benefits (if any) as may be
available under the Company's then existing benefit plans and policies
at the time and under the circumstances of such termination.
8. Article IV(4) is amended to read as follows:
4. Termination Apart from Change in Control In the event that a
Participant's employment terminates for any reason prior to the
occurrence of a Change in Control or after the fifteen (15) month
period following a Change in Control, then the Participant shall not be
entitled to receive severance or other benefits under this Plan and
shall be entitled only to those benefits (if any) as may be available
under the Company's existing benefit plans and policies at the time of
such termination.
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9. A new Article IX(5) is added to read as follows:
The Plan Administrator shall have full power, authority and discretion
to control and manage the operation and administration of the Plan. Any
action taken by the Plan Administrator in its discretion in the
exercise of authority conferred upon it by this Plan shall be
conclusive and binding upon Participants and all other persons.
10. Article X(2) is amended by replacing " the eighteen (18) month period"
with "the fifteen (15) month period".
11. Article X(3) is deleted.
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