Exhibit 10.1
BOARD REPRESENTATION AGREEMENT
THIS AGREEMENT, dated as of June 26, 2006 (the "Agreement"), is by and between
Carreker Corporation, a Delaware corporation (the "Company"), Riley Investment
Management, LLC ("Riley Management"), SACC Partners LP ("SACC"), and Bryant R.
Riley ("Riley"), (Riley Management, SACC, and Riley are referred to collectively
as the "Riley Parties"). This Agreement shall not apply to B. Riley & Co., Inc.
with respect to client accounts, subject to the last sentence of Section 3(d).
WHEREAS, the Riley Parties are, in the aggregate, the beneficial owners of
2,482,039 shares of common stock, par value $0.01 per share, of
the Company
(the "Common Stock"), constituting approximately 9.76% of the outstanding Common
Stock of the Company (the "Shares");
WHEREAS, the Riley Parties have filed a Schedule 13D with the Securities and
Exchange Commission (the "SEC") on June 16, 2006 with respect to their ownership
of shares of the Company;
WHEREAS, in lieu of separately pursuing other actions to obtain board
representation with the Company, the Riley Parties desire that Riley be
appointed to the Board of Directors of the Company to fill the vacancy of a
resigning director;
WHEREAS, the Governance and Nominating Committee of the Board of Directors (the
"Nominating Committee") has evaluated the candidacy of Riley consistent with the
criteria set forth in the Company's Corporate Governance Guidelines and, subject
to the terms and conditions set forth in this Agreement, has recommended to the
Board of Directors the appointment of Riley to fill the unexpired term of the
resigning director;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1.
REPRESENTATIONS.
(A)
BINDING AGREEMENT; AUTHORITY. THE COMPANY HEREBY REPRESENTS AND WARRANTS
THAT THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE
COMPANY AND IS A VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS. EACH OF THE RILEY PARTIES
REPRESENTS AND WARRANTS THAT THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED
AND DELIVERED BY SUCH PERSON AND IS A VALID AND BINDING OBLIGATION OF SUCH
PERSON, ENFORCEABLE AGAINST SUCH PERSON IN ACCORDANCE WITH ITS TERMS.
(B)
SHARE OWNERSHIP OF COMMON STOCK. EACH OF THE RILEY PARTIES HEREBY
REPRESENTS AND WARRANTS THAT, AS OF THE DATE HEREOF, IT AND ITS AFFILIATES AND
ASSOCIATES (AS SUCH TERMS ARE HEREINAFTER DEFINED) ARE THE "BENEFICIAL OWNERS"
(AS SUCH TERM IS HEREINAFTER DEFINED) OF AN AGGREGATE OF 2,482,039 SHARES OF
COMMON STOCK (THE "SHARES"), AND THAT NEITHER IT NOR ITS AFFILIATES OR
ASSOCIATES BENEFICIALLY OWNS, OR HAS ANY RIGHTS, OPTIONS OR AGREEMENTS TO
ACQUIRE OR VOTE, ANY OTHER SHARES OF COMMON STOCK OR ANY OTHER CAPITAL STOCK OR
OTHER SECURITIES OF THE COMPANY.
(C)
DEFINED TERMS. FOR PURPOSES OF THIS AGREEMENT, THE TERMS "AFFILIATE" AND
"ASSOCIATE" SHALL HAVE THE RESPECTIVE MEANINGS SET FORTH IN RULE 12B-2
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") UNDER EXCHANGE
ACT.