**Exhibit10.1**

 

**CARREKERCORPORATIONEXECUTIVENON-QUALIFIED STOCK OPTION AGREEMENT**

 

The following are theterms and conditions of the Non-Qualified Stock Option Agreement (the “Agreement”),which are incorporated by reference into the Notice of Grant of Stock Optionsand Option Agreement (the “Notice of Grant”), signed by the Company and agreed andaccepted by the Optionee.

 

Pursuant to the CarrekerCorporation (the “Company”) Third Amended and Restated 1994 Long Term IncentivePlan (the “Plan”), the Compensation Committee of the Board of Directors of theCompany (the “Committee”) has granted to you a non-qualified stock option (the “Option”)to purchase, on the terms and conditions set forth herein, shares (the “OptionShares”) of the Company’s Common Stock, $.01 par value (the “Stock”). The termsand conditions of the Option are set forth below:

 

1.                                       Dateof Grant. The Option is granted to you on the date shown in the Notice ofGrant.

 

2.                                       Exerciseof Option. The Option, to the extent vested, may be exercised as follows:

 

(a)                                  The Optionee mayexercise the Option with respect to all or any part of the Option Shares thenvested in the manner specified from time to time by the Company (the “ExerciseDate”).

 

(b)                                 On the Exercise Dateor as soon thereafter as practicable, the Company shall cause to be deliveredto the Optionee or brokerage firm the Option Shares then being purchased uponfull payment for such Option Shares.

 

(c)                                  The Company’sobligation to deliver Option Shares is subject to applicable federal (includingFICA), state and local tax withholding requirements. The Company may requirethe Optionee or other person receiving such Option Shares to pay to the Companythe amount of any such taxes that the Company is required to withhold withrespect to such Option Shares, or the Company may deduct from other wages paidby the Company the amount of any withholding taxes due with respect to suchOption Shares.

 

3.                                       Terminationof Option.  The Option, and allrights hereunder with respect thereto, to the extent such rights shall not havebeen exercised, shall terminate and become null and void on the earliest tooccur of the following dates:

 

(a)                                  theexpiration date shown on the Notice of Grant;

 

(b)                                 inthe event Optionee’s employment with the Company or any subsidiary isterminated, other than by reason of death or isability (as defined below) orterminated for Cause (as defined below), then this Option may be exercised, tothe extent vested, at any time within ninety (90) calendar days after the dateof termination of employment, but not later than the Expiration Date. Followingthe expiration of such ninety (90) calendar day period, this Option shallterminate;

 

(c)                                  inthe event Optionee’s employment with the Company or any subsidiary isterminated for Cause, then this Option shall terminate and no longer beexercisable immediately upon the date of termination. “Cause” means (a) anyact by the Optionee that is materially adverse to the best interests of theCompany and which, if the subject of a criminal proceeding, could result in acriminal conviction for a felony or (b) the failure by the Optionee tosubstantially perform his/her duties hereunder, which duties

 

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are within the control ofthe Optionee (other than the failure resulting from the Optionee’s incapacitydue to physical or mental illness); provided, however, that the Optionee shallnot be deemed to be terminated for Cause under this subsection (b) unlessand until (1) after the Optionee receives written notice from the Companyspecifying with reasonable particularity the actions of Optionee whichconstitute a violation of this subsection (b) and (2) within aperiod of thirty (30) days after receipt of such notice (and during which theviolation is within the control of the Optionee), Optionee fails to reasonablyand prospectively cure such violation.

 

(d)                                 inthe event Optionee dies while employed with the Company or any subsidiary, thisOption may be exercised, to the extent then vested, by the Optionee’s executor,estate, personal representative or beneficiary, as the case may be, and to whomthis Option is transferred by operation of law, at any time within one (1) yearafter the date of death, but not later than the Expiration Date. Following theexpiration of such one-year period, this Option shall terminate;

 

(e)                                  inthe event Optionee’s employment with the Company or any subsidiary isterminated by reason of his disability (which shall mean “permanent and totaldisability” as defined in Section 22(e)(3) of the Code, or anysuccessor statute), this Option may be exercised, to the extent then vested, atany time within one (1) year after the date of such disability, but notlater than the Expiration Date. Following the expiration of such one-yearperiod, this Option shall terminate..

 

4.                                       Adjustmentof and Changes in Stock of the Company. In the event of a reorganization, re-capitalization, change of shares,stock split, spin-off, stock dividend, reclassification, subdivision orcombination of shares, merger, consolidation, rights offering, or any otherchange in the corporate structure or shares of capital stock of the Company,the Committee shall make such adjustment as it deems appropriate in the numberand kind of shares of Stock subject to the Option or in the Exercise Price; provided,however, that no such adjustment shall give the Optionee any additionalbenefits under the Option.

 

5.                                       CapitalTransactions.  In the event that,following the date of this Agreement, during the term hereof and prior to thetermination of the Option in accordance with Section 3 hereof, there shalloccur (a) a merger or consolidation of the Company with or into anothercorporation in which the Company shall not be the surviving corporation (otherthan such a merger or consolidation undertaken to reincorporate in anotherjurisdiction) (for purposes of this Section 5, the Company shall not bedeemed the surviving corporation in any such transaction if, as the resultthereof, it becomes a wholly-owned subsidiary of another corporation), (b) adissolution of the Company, or (c) a transfer of all or substantially allof the assets or shares of Stock of the Company in one transaction or a seriesof related transactions to one or more other persons or entities (any suchtransaction being referred to herein as a “Capital Transaction”), and, either (i) theOptionee’s employment with the Company was terminated ninety (90) days prior toa Capital Transaction without Cause, or (ii) **the Optionee’s employment with the Company or anysubsidiary is terminated without Cause or the Optionee terminates hisemployment with the Company or any subsidiary for “Good Reason” (as that termis defined below) on or within two (2) years following******theclosing date of any Capital Transaction, then any or all Option Shares,unvested at the time of termination of employment,  shall become fully vested and exercisable andthe Optionee, without the necessity of any further action by the Committee,shall be entitled to purchase, prior to the expiration of a sixty (60) dayperiod following the later of (i) the date of termination of Optionee’semployment or (ii) the occurrence of a Capital Transaction, the number ofOption Shares which are then vested and exercisable.

 

“Good Reason” means theoccurrence of a Capital Transaction (as defined above) and (a) withouthis/her prior concurrence, the Optionee is assigned any duties orresponsibilities that are inconsistent with his/her position, duties,responsibilities or status at the commencement of the term of this

 

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Agreement, or his/herreporting responsibilities or titles in effect at such time are changed, (b) theOptionee’s total compensation is reduced, (c) any change in any Optioneebenefit plans or arrangements in effect on the date hereof in which the Optioneeparticipates (including without limitation any pension and retirement plan,savings and profit sharing plan, stock ownership or purchase plan, stock optionplan, or life, medical or disability insurance plan), which would adverselyaffect the Optionee’s rights or benefits thereunder, unless such change occurspursuant to a program applicable to all executive officers of the Company anddoes not result in a proportionately greater reduction in the rights of orbenefits to the Optionee as compared to any other executive officer of theCompany, or (d) without his/her prior concurrence, the Optionee isrequired to engage in an increased amount of travel on the Company’s business.

 

6.                                       Rightsof Shareholder.  Neither the Optioneenor any heir, personal representative or other person shall be, or shall haveany of the rights and privileges of, a shareholder of the Company with respectto any shares of Stock purchasable or issuable upon the exercise of the Option,in whole or in part, prior to the date of exercise of the Option.

 

7.                                       Guidelines for Stock Ownership by ExecutiveOfficers.  If Optionee is a senior executive officer ofthe Company at the time of exercise of any Option, and has not yet achieved theownership levels contained in the Company’s guidelines for executive officers,the Optionee hereby agrees to retain at least 25% of the Option Sharesremaining after satisfaction of applicable tax liabilities**.**

 

8.                                       Transferabilityof Option.  During Optionee’slifetime, the Option hereunder shall be exercisable only by the Optionee or anyguardian or legal representative of the Optionee, and the Option shall not betransferable except, in case of the death of the Optionee, by will or the lawsof descent and distribution, nor shall the Option be subject to attachment,execution or other similar process. In the event of (a) any attempt by Optioneeto alienate, assign, pledge, hypothecate or otherwise dispose of the Option,except as provided for herein, or (b) the levy of any attachment,execution or similar process upon the rights or interest hereby conferred, theCompany may terminate the Option by notice to the Optionee and it shallthereupon become null and void.

 

9.                                       EmploymentNot Affected.  Neither the grantingof the Option nor its exercise shall be construed as granting to the Optioneeany right with respect to continuance of employment. Except as may otherwise belimited by a written agreement between the Company or one of its subsidiaries,as the case may be, and the Optionee, the right of the Company (or one of itssubsidiaries) to terminate the Optionee’s employment at any time isspecifically reserved.

 

10.                                 Amendmentof Option.  The Option and thisAgreement may be amended by the Board or the Committee at any time without theconsent of Optionee (i) if the Board or the Committee determines, in itssole discretion, that the amendment is necessary or advisable in the light ofany addition to or change in the Code or in the regulations issued thereunder,or any federal or state securities law or other law or regulation, which changeoccurs after the date hereof and by its terms applies to the Option or (ii) inorder to make the adjustments set forth in Section 5 hereof. Other thanthe matters set forth in the preceding sentence, the consent of Optionee shallbe required in order to amend any other provision of this Agreement.Notwithstanding the foregoing, the Committee may, in its sole discretion,accelerate the exercisability of the Option at any time.

 

11.                                 Notices. Any notice to the Company provided forin this Agreement shall be addressed to it in care of its Corporate Secretaryat the Company’s executive offices. Any notice to the Optionee shall beaddressed to Optionee at the current address shown on the payroll records ofthe Company or by email. Any notice shall be deemed to be duly given if andwhen properly addressed and posted by registered or certified mail, postageprepaid or by email.

 

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12.                                 Incorporationof Plan by Reference.  The Option isgranted pursuant to the terms of the Plan, the terms of which are incorporatedherein by reference, and the Option shall in all respects be interpreted inaccordance with the Plan. The Committee shall interpret and construe the Planand this Agreement, and its interpretations and determinations shall beconclusive and binding on the parties hereto and any other person claiming aninterest hereunder, with respect to any issue arising hereunder or thereunder.In the event any of the terms and conditions set forth in this Agreement are inconflict or are inconsistent with the terms of the Plan, the terms of the Planshall control.

 

13.                                 GoverningLaw.  The validity, construction,interpretation and effect of this instrument shall exclusively be governed byand determined in accordance with the law of the State of Delaware.

 

14.                                 CapitalizedTerms.  Unless otherwise definedherein, each capitalized term appearing in this Agreement shall have the samemeaning as the corresponding term in the Plan.

 

15.                                 BindingEffect.  This Agreement shall bebinding upon the parties hereto, together with their respective executors,administrators, successors, personal representatives, heirs and assigns.

 

16.                                 EntireAgreement.  This Agreement and the Noticeof Grant embody the entire agreement and understanding between the partieshereto with respect to the subject matter hereof and supersedes all prioragreements and understandings relating to the subject matter hereof.

 

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