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EXHIBIT 4.1
SECOND AMENDED AND RESTATED
1994 LONG TERM INCENTIVE PLAN
AS AMENDED PER PROPOSAL THREE
WHEREAS, on October 7, 1994, J. D. Carreker & Associates, Inc. adopted the
J. D. Carreker & Associates, Inc. Long Term Incentive Plan, which was approved
by its shareholders; and
WHEREAS, The Carreker Group, Inc. (successor to J. D. Carreker &
Associates, Inc.) subsequently amended and restated the plan as The Carreker
Group, Inc. Amended and Restated 1994 Long Term Incentive Plan, which was
approved at the annual meeting of its shareholders in 1997; and
WHEREAS, the name of the corporation was changed from The Carreker
Group, Inc. to Carreker-Antinori, Inc. (the "Company"); and
WHEREAS, incident to the Company's reincorporation in the state of Delaware,
and the registration of its equity securities in a registered offering pursuant
to the Securities Act of 1934, the Company amended and restated the Plan as the
Carreker-Antinori, Inc. 1994 Long Term Incentive Plan (as Amended and Restated
effective May 12, 1998); and
WHEREAS, the Board of Directors of the Company has determined that it is
advisable and in the best interests of the Company to amend and restate the 1994
Long Term Incentive Plan, effective as of June 20, 2000, subject to the approval
of the Company's shareholders;
NOW, THEREFORE, the terms of the Second Amended and Restated 1994 Long Term
Incentive Plan (the "Plan") shall be as follows.
I. GENERAL
1. PURPOSE. The Plan has been established by the Company to:
(a) attract and retain employees, consultants and non-employee directors;
(b) motivate participating employees, consultants and non-employee
directors, by means of appropriate incentive, to achieve long-range
goals;
(c) provide incentive compensation opportunities for participating
employees, consultants and non-employee directors which are
competitive with those of other major corporations; and
(d) further identify the interests of participating employees,
consultants and non-employee directors with those of the Company's
other shareholders through compensation alternatives based on the
Company's common stock;
and thereby promote the long-term financial interest of the Company and its
Subsidiaries, including the growth in value of the Company's equity and
enhancement of long-term shareholder return.
2. EFFECTIVE DATE. The provisions of the Plan originally became effective
on October 7, 1994. The Plan shall be unlimited in duration and, in the event of
plan termination, shall remain in effect as long as any awards under it are
outstanding; PROVIDED, HOWEVER, that no awards of incentive stock options
("INCENTIVE STOCK OPTIONS") as provided in Section 422 of the Code may be made
under the Plan after June 19, 2010. The provisions of the Plan as restated and
amended herein shall become effective as of June 20, 2000 (the "EFFECTIVE
DATE"), subject to the approval of the holders of a majority of the shares of
voting stock of all classes of the Company present, or represented, and entitled
to vote at a meeting of its stockholders, or the unanimous written consent of
all holders of common stock.
3. DEFINITIONS. The following definitions are applicable to the Plan.
"Board" means the Board of Directors of the Company.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Compensation Committee of the Board or, if no
Compensation Committee is in existence, the entire Board.
"Disabled" means the inability of a Participant, by reason of a physical or
mental impairment, to engage in any substantial gainful activity, of which the
Board shall be the sole judge.
"Fair Market Value" of Stock means as of any date, the value of Stock
determined as follows:
(a) If the Stock is listed on any established stock exchange or a national
market system, including without limitation the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ") System, the Fair Market Value of a Share of Stock shall be the
closing sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in Stock) on the date of grant, as reported in
THE WALL STREET JOURNAL or such other source as the Board deems reliable;
(b) If the Stock is quoted on the NASDAQ System (but not on the National
Market System thereof) or regularly quoted by a recognized securities
dealer but selling prices are not reported, the Fair Market Value of a
Share of Stock shall be the mean between the bid and asked prices for the
Stock on the last market trading day prior to the day of determination,
as reported in THE WALL STREET JOURNAL or such other source as the Board
deems reliable; or
(c) In the absence of an established market for the Stock, the Fair Market
Value thereof shall be determined in good faith by the Committee.
"Option Date" means, with respect to any Stock Option, the date on which the
Stock Option is awarded under the Plan.
"Participant" means any employee, consultant or non-employee director of the
Company or any Subsidiary who is selected by the Board to participate in the
Plan.
"Performance Period" has the meaning ascribed to it in Article IV.
"Related Company" means any corporation during any period in which it is a
Subsidiary, or during any period in which it directly or indirectly owns 50% or
more of the total combined voting power of all classes of stock of the Company
that are entitled to vote.
"Restricted Stock" has the meaning ascribed to it in Article IV.
"Stock" means Carreker-Antinori, Inc. common stock, $.01 par value.
"Stock Option" means the right of a Participant to purchase Stock pursuant
to an Incentive Stock Option or Non-Qualified Option awarded pursuant to the
provisions of the Plan.
"Subsidiary" means any corporation during any period of which 50% or more of
the total combined voting power of all classes of stock entitled to vote is
owned, directly or indirectly, by the Company.
4. ADMINISTRATION. The authority to manage and control the operation and
administration of the Plan shall be vested in the Board. Subject to the
provisions of the Plan, the Board will have authority to select employees,
consultants and/or non-employee directors to receive awards of Stock Options
and/or Restricted Stock, to determine the time or times of receipt, to determine
the types of awards and the number of shares covered by the awards, to establish
the terms, conditions, performance criteria, restrictions, and other provisions
of such awards, and to cancel or suspend awards. In making such award
determinations, the Board may take into account the nature of services rendered
by the respective employee, consultant and/or non-employee director, his or her
present and potential contribution to the Company's success, and such other
factors as the Board deems relevant. The Board is authorized to
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interpret the Plan, to establish, amend, and rescind any rules and regulations
relating to the Plan, to determine the terms and provisions of any agreements
made pursuant to the Plan, to modify such agreements, and to make all other
determinations that may be necessary or advisable for the administration of the
Plan.
The Board, in its discretion, may delegate any or all of its authority,
powers, and discretion under this Plan to the Committee, and the Board in its
discretion may revest any or all such authority, powers, and discretion in
itself at any time. If appointed, the Committee shall function as follows: A
majority of the Committee shall constitute a quorum, and the acts of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by all members of the Committee, shall be the acts of the
Committee, unless provisions to the contrary are embodied in the Company's
Bylaws or resolutions duly adopted by the Board. All actions taken and decisions
and determinations made by the Board or the Committee pursuant to the Plan shall
be binding and conclusive on all persons interested in the Plan. No member of
the Board or the Committee shall be liable for any action or determination taken
or made in good faith with respect to the Plan.
5. PARTICIPATION. Subject to the terms and conditions of the Plan, the
Board shall determine and designate, from time to time, the employees,
consultants and non-employee directors of the Company and/or its Subsidiaries
who will participate in the Plan. In the discretion of the Board, more than one
award may be granted to a Participant. Except as otherwise agreed to by the
Company and the Participant, any award under the Plan shall not affect any
previous award to the Participant under the Plan or any other plan maintained by
the Company or its Subsidiaries.
6. SHARES SUBJECT TO THE PLAN. The shares of Stock with respect to which
awards may be made under the Plan shall be either authorized and unissued shares
or issued and outstanding shares (including, in the discretion of the Board,
shares purchased in the market). Subject to the provisions of paragraph I.10,
the number of shares of Stock available under the Plan shall not exceed
6,959,936 shares in the aggregate increased, as of the first day of each fiscal
year, commencing February 1, 2001, by that number of shares of Stock equal to
two per cent (2%) of the number of shares of Stock outstanding as of
January 31, 2000. If, for any reason, any award under the Plan otherwise
distributable in shares of Stock, or any portion of the award, shall expire,
terminate, or be forfeited or cancelled, or be settled in cash pursuant to the
terms of the Plan and, therefore, any such shares are no longer distributable
under the award, such shares of Stock shall again be available for award under
the Plan.
7. COMPLIANCE WITH APPLICABLE LAWS AND WITHHOLDING OF
TAXES. Notwithstanding any other provision of the Plan, the Company shall have
no liability to issue any shares of Stock under the Plan unless such issuance
would comply with all applicable laws and the applicable requirements of any
securities exchange or similar entity. Prior to the issuance of any shares of
Stock under the Plan, the Company may require a written statement that the
recipient is acquiring the shares for investment and not for the purpose or with
the intention of distributing the shares. If the redistribution of shares is
restricted, certificates representing such shares may bear a legend referring to
such restrictions. All awards and payments under the Plan are subject to
withholding of all applicable taxes, which withholding obligations may be
satisfied, with the consent of the Board, through the surrender of shares of
Stock which the Participant already owns, or to which a Participant is otherwise
entitled under the Plan. The Company shall have the right to deduct from all
amounts paid in cash in consequence of the exercise of a Stock Option under the
Plan any taxes required by law to be withheld with respect to such cash
payments. Where an employee or other person is entitled to receive shares of
Stock pursuant to the exercise of a Stock Option pursuant to the Plan, the
Company shall have the right to require the employee or such other person to pay
to the Company the amount of any taxes that the Company is required to withhold
with respect to such shares, or, in lieu thereof, to retain, or sell without
notice, a sufficient number of such shares to cover the amount required to be
withheld. Upon the disposition (within the meaning of Code Section 424(c)) of
shares of Stock acquired pursuant to the exercise of an Incentive Stock Option
prior to the expiration of the holding period requirements of Code
Section 422(a)(1), the employee shall be required to give notice to the Company
of
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such disposition and the Company shall have the right to require the employee to
pay to the Company the amount of any taxes that are required by law to be
withheld with respect to such disposition.
8. TRANSFERABILITY. Stock Options awarded under the Plan are not
transferable except as designated by the Participant by will or by the laws of
descent and distribution. Stock Options may be exercised during the lifetime of
the Participant only by the Participant or his guardian or legal representative.
9. EMPLOYEE, CONSULTANT, NON-EMPLOYEE DIRECTOR AND STOCKHOLDER STATUS. The
Plan does not constitute a contract of employment, and selection as a
Participant will not give any employee, consultant or non-employee director the
right to be retained in the employ or as a consultant or non-employee director
of the Company or any Subsidiary. No award under the Plan shall confer upon the
holder thereof any right as a stockholder of the Company prior to the date on
which he fulfills all service requirements and other conditions for receipt of
shares of Stock.
10. ADJUSTMENTS TO NUMBER OF SHARES SUBJECT TO THE PLAN. Subject to the
following provisions of this paragraph 10, in the event of any change in the
outstanding shares of Stock of the Company by reason of any stock dividend,
split, spinoff, recapitalization, merger, consolidation, combination, exchange
of shares or other similar change, the aggregate number of shares of Stock with
respect to which awards may be made under the Plan, the terms and the number of
shares of any outstanding Stock Options, and the purchase price of a share of
Stock under Stock Options, may be equitably adjusted by the Board in its sole
discretion.
11. CAPITAL TRANSACTION. In the event that there shall occur (a) a merger
or consolidation of the Company with or into another corporation in which the
Company shall not be the surviving corporation (other than such a merger or
consolidation undertaken to reincorporate in another jurisdiction) (for purposes
of this Section 11, the Company shall not be deemed the surviving corporation in
any such transaction if, as the result thereof, it becomes a wholly-owned
subsidiary of another corporation), (b) a dissolution of the Company, or (c) a
transfer of all or substantially all of the assets or shares of stock of the
Company in one transaction or a series of related transactions to one or more
other persons or entities (any such transaction being referred to herein as a
"Capital Transaction"), then:
(A) If there is a plan or agreement respecting the Capital Transaction
and if such plan or agreement specifically provides for the change,
conversion, or exchange of the shares of Stock under outstanding and
unexercised Options for securities of another corporation, then the Board
shall adjust the shares of Stock underlying such outstanding and unexercised
Options (and shall adjust the shares of Stock remaining under the Plan which
are then available to be awarded under the Plan, if such plan or agreement
makes specific provision therefor) in a manner not inconsistent with the
provisions of such plan or agreement for the adjustment, change, conversion,
or exchange of such shares of Stock and such Options;
(B) If there is no plan or agreement respecting the Capital Transaction
or if such plan or agreement does not specifically provide for the change,
conversion, or exchange of the shares of Stock under outstanding and
unexercised Options for securities of another corporation, then the
Committee shall provide the Participant with thirty (30) days advance
written notice of such transaction and the Participant, without the
necessity of any further action by the Committee, shall be entitled to
purchase, prior to the effective date of such Capital Transaction, the
number of Option Shares which are then vested. The unvested or unexercised
portion of the Option shall be deemed cancelled and terminated as of the
effective date of such transaction.
Notwithstanding the foregoing, the Board or the Committee may provide that upon
the occurrence of such events as it shall deem appropriate, any or all
outstanding Options shall become fully vested and exercisable.
12. AGREEMENT WITH COMPANY. At the time of any awards under the Plan, the
Board will require a Participant to enter into an agreement with the Company in
a form specified by the Board, agreeing to the
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terms and conditions of the Plan and to such additional terms and conditions,
not inconsistent with the Plan, as the Board may, in its sole discretion,
prescribe.
13. AMENDMENT AND TERMINATION OF PLAN. Subject to the following provisions
of this paragraph 13, the Board may at any time and in any way amend, suspend,
or terminate the Plan. No amendment of the Plan and, except as provided in
paragraphs 6 and 10, no action by the Board shall, without further approval of
the stockholders of the Company, increase the total number of shares of Stock
with respect to which awards may be made under the Plan, materially increase the
benefits accruing to Participants under the Plan, or materially modify the
requirements as to eligibility for participation in the Plan, if stockholder
approval of such amendment is a condition of Securities and Exchange Commission
Rule 16b-3 or the Code at the time such amendment is adopted. No amendment,
suspension, or termination of the Plan shall alter or impair any Stock Option or
Restricted Stock previously awarded under the Plan without the consent of the
holder thereof.
II. INCENTIVE STOCK OPTIONS
1. DEFINITION. The award of an Incentive Stock Option under the Plan
entitles the Participant to purchase shares of Stock at a price fixed at the
time the option is awarded, subject to the following terms of this Part II.
2. ELIGIBILITY. The Board shall designate the Participants to whom
Incentive Stock Options, as described in section 422(b) of the Code or any
successor section thereto, are to be awarded under the Plan and shall determine
the number of option shares to be offered to each of them. Incentive Stock
Options may be awarded only to employees, and not to consultants or non-employee
directors. In no event shall the aggregate Fair Market Value (determined at the
time the option is awarded) of Stock with respect to which Incentive Stock
Options are exercisable for the first time by an individual during any calendar
year (under all plans of the Company and all Related Companies) exceed $100,000.
3. PRICE. The purchase price of a share of Stock under each Incentive
Stock Option shall be determined by the Board, provided, however, that in no
event shall such price be less than the greater of (a) 100% of the Fair Market
Value of a share of Stock as of the Option Date (or 110% of such Fair Market
Value if the holder of the option owns stock possessing more than 10% of the
combined voting power of all classes of stock of the Company or any Subsidiary)
or (b) the par value of a share of Stock on such date. The full purchase price
of each share of Stock purchased upon the exercise of any Incentive Stock Option
shall be paid in cash at the time of such exercise or, with the approval of the
Board, in shares of Stock, valued at the Fair Market Value per share on the date
of exercise. As soon as practicable thereafter, a certificate representing the
shares so purchased shall be delivered to the person entitled thereto.
4. EXERCISE. Each Option shall become and be exercisable at such time or
times and during such period or periods, in full or in such installments as may
be determined by the Board at the Option Date.
5. OPTION EXPIRATION DATE. The "Expiration Date" with respect to an
Incentive Stock Option or any portion thereof awarded to a Participant under the
Plan means the earliest of:
(a) the date that is 10 years after the date on which the Incentive Stock
Option is awarded (or, if the Participant owns stock possessing more
than 10% of the combined voting power of all classes of stock of the
Company or any Subsidiary, the date that is 5 years after the date on
which the Incentive Stock Option is awarded);
(b) the date established by the Board at the time of the award;
(c) the date that is one year after the Participant's employment with the
Company and all Related Companies is terminated by reason of the
Participant becoming Disabled or by reason of the Participant's
death; or
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(d) the date that is three months after the date the Participant's
employment with the Company and all Related Companies is terminated
for any other reason.
All rights to purchase shares of Stock pursuant to an Incentive Stock Option
shall cease as of such option's Expiration Date.
III. NON-QUALIFIED STOCK OPTIONS
1. DEFINITION. The award of a Non-Qualified Stock Option under the Plan
entitles the Participant to purchase shares of Stock at a price fixed at the
time the option is awarded, subject to the following terms of this Part III.
2. ELIGIBILITY. The Board shall designate the Participants to whom
Non-Qualified Stock Options are to be awarded under the Plan and shall determine
the number of option shares to be offered to each of them.
3. PRICE. The purchase price of a share of Stock under each Non-Qualified
Stock Option shall be determined by the Board; provided, however, that in no
event shall such price be less than the par value of a share of such Stock on
such date. The full purchase price of each share of Stock purchased upon the
exercise of any Non-Qualified Stock Option shall be paid in cash at the time of
such exercise or, with the approval of the Board, in shares of Stock, valued at
the Fair Market Value per share on the date of exercise. If the Company shall
have a class of its Common Stock registered pursuant to Section 12 of the 1934
Act, an option holder may also make payment at the time of exercise of an option
by delivering to the Company a properly executed exercise notice together with
irrevocable instructions to a broker approved by the Company that upon such
broker's sale of shares with respect to which such option is exercised, it is to
deliver promptly to the Company the amount of sale proceeds necessary to satisfy
the option exercise price and any required withholding taxes. As soon as
practicable thereafter, a certificate representing the shares so purchased shall
be delivered to the person entitled thereto.
4. EXERCISE. Each Option shall become and be exercisable at such time or
times and during such period or periods, in full or in such installments as may
be determined by the Board at the Option Date.
5. OPTION EXPIRATION DATE. The "Expiration Date" with respect to a
Non-Qualified Stock Option or any portion thereof awarded to a Participant under
the Plan means the earliest of:
(a) the date established by the Board at the time of the award; or
(b) the date that is one year after the Participant's employment with the
Company and all Related Companies is terminated by reason of the
Participant becoming Disabled or by reason of the Participant's
death; or
(c) the date that is three months after the date the Participant's
employment with the Company and all Related Companies is terminated
for any other reason, or the date the Participant ceases to serve as
a consultant or non-employee director of the Company for any reason.
All rights to purchase shares of Stock pursuant to a Non-Qualified Stock Option
shall cease as of such option's Expiration Date.
IV. RESTRICTED STOCK
1. DEFINITION. A Restricted Stock award is an offer by the Company to sell
to an eligible person shares of Stock that are subject to restrictions. The
Board will determine to whom an offer will be made, the number of shares of
Stock the person may purchase, the price to be paid, the restrictions to which
the shares will be subject, and all other terms and conditions of the Restricted
Stock award, subject to the following.
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2. ELIGIBILITY. The Board shall designate the Participants to whom
Restricted Stock is to be awarded and the number of shares of Stock that are
subject to the award. The offer of Restricted Stock will be accepted by the
Participant's execution and delivery of the Restricted Stock Purchase Agreement
and full payment for the Shares to the Company within thirty (30) days from the
date the Restricted Stock Purchase Agreement is delivered to the person.
3. TERMS AND CONDITIONS OF AWARDS. The purchase price of shares sold
pursuant to a Restricted Stock Award will be determined by the Committee on the
date the Restricted Stock Award is granted. Restricted Stock Awards shall be
subject to such restrictions as the Committee may impose. These restrictions may
be based upon completion of a specified number of years of service with the
Company or upon completion of the performance goals as set out in advance in the
Participant's individual Restricted Stock Purchase Agreement. Restricted Stock
Awards may vary from Participant to Participant and between groups of
Participants. Prior to the grant of a Restricted Stock Award, the Committee
shall: (a) determine the nature, length and starting date of any Performance
Period for the Restricted Stock Award; (b) select from among the Performance
Factors to be used to measure performance goals, if any; and (c) determine the
number of hares that may be awarded to the Participant. Prior to the payment of
any Restricted Stock Award, the Committee shall determine the extent to which
such Restricted Stock Award has been earned. Performance Periods may overlap and
Participants may participate simultaneously with respect to Restricted Stock
Awards that are subject to different Performance Periods and having different
performance goals and other criteria.
4. TERMINATION DURING PERFORMANCE PERIOD. If a Participant is terminated
during a Performance Period for any reason, then such Participant will be
entitled to payment (whether in shares of Stock, cash or otherwise) with respect
to the Restricted Stock Award only to the extent earned as of the date of
termination in accordance with the Restricted Stock Purchase Agreement, unless
the Committee determines otherwise.
5. STOCK CERTIFICATE LEGEND. Each certificate issued in respect of shares
of Restricted Stock awarded under the Plan shall be registered in the name of
the Participant and, at the discretion of the Board, each such certificate may
be deposited in a bank designated by the Board. Each such certificate shall bear
the following (or a similar) legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the Carreker-Antinori, Inc., 1994 Long-Term
Incentive Plan and an agreement entered into between the registered owner
and Carreker-Antinori, Inc. A copy of such plan and agreement is on file
in the office of the Secretary of Carreker-Antinori, Inc., 4055 Valley
View Lane, Suite 1000, Dallas, Texas 75244."
At the end of the Performance Period for Restricted Stock, such Restricted Stock
will be transferred free of all restrictions to a Participant (or his or her
legal representative, beneficiary or heir).
