EXHIBIT (d)(2)
CAMINUS CORPORATION
2001 NON-OFFICER EMPLOYEE STOCK INCENTIVE PLAN
1. Purpose
The purpose of this 2001 Non-Officer Employee Stock Incentive Plan (the
"Plan") of Caminus Corporation, a Delaware corporation (the "Company"), is to
advance the interests of the Company's stockholders by enhancing the Company's
ability to attract, retain and motivate persons who make (or are expected to
make) important contributions to the Company by providing such persons with
equity ownership opportunities and performance-based incentives and thereby
better aligning the interests of such persons with those of the Company's
stockholders. Except where the context otherwise requires, the term "Company"
shall include any of the Company's present or future subsidiary corporations as
defined in Section 424(f) of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder (the "Code").
2. Eligibility
All of the Company's employees (and any individuals who have accepted an
offer for employment), consultants and advisors, other than those who are also
officers (within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the
"Exchange Act")) or directors of the Company, are eligible to be granted
options, restricted stock awards or other stock-based awards (each, an "Award")
under the Plan. Each person who has been granted an Award under the Plan shall
be deemed a "Participant."
3. Administration, Delegation
(a) Administration by Board of Directors. The Plan will be administered
by the Board of Directors of the Company (the "Board"). The Board shall have
authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable.
The Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem expedient to carry the Plan into effect and it shall be the sole and final
judge of such expediency. All decisions by the Board shall be made in the
Board's sole discretion and shall be final and binding on all persons having or
claiming any interest in the Plan or in any Award. No director or person acting
pursuant to the authority delegated by the Board shall be liable for any action
or determination relating to or under the Plan made in good faith.
(b) Appointment of Committees. To the extent permitted by applicable
law, the Board may delegate any or all of its powers under the Plan to one or
more committees or subcommittees of the Board (a "Committee"). All references in
the Plan
to the "Board" shall mean the Board or a Committee of the Board to the extent
that the Board's powers or authority under the Plan have been delegated to such
Committee.
4. Stock Available for Awards
Subject to adjustment under Section 8, Awards may be made under the Plan
for up to 700,000 shares of common stock, $.01 par value per share, of the
Company (the "Common Stock"). If any Award expires or is terminated, surrendered
or canceled without having been fully exercised or is forfeited in whole or in
part or results in any Common Stock not being issued, the unused Common Stock
covered by such Award shall again be available for the grant of Awards under the
Plan. Shares issued under the Plan may consist in whole or in part of authorized
but unissued shares or treasury shares.
5. Nonstatutory Stock Options
(a) General. The Board may grant nonstatutory stock options to purchase
Common Stock (each, an "Option") and determine the number of shares of Common
Stock to be covered by each Option, the exercise price of each Option and the
conditions and limitations applicable to the exercise of each Option, including
conditions relating to applicable federal or state securities laws, as it
considers necessary or advisable. No Option granted under the Plan shall be
intended to be an "incentive stock option" as defined in Section 422 of the
Code.
(b) Exercise Price. The Board shall establish the exercise price at
the time each Option is granted and specify it in the applicable option
agreement.
(c) Duration of Options. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Board may specify in the
applicable option agreement.
(d) Exercise of Option. Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(e) for the number of
shares for which the Option is exercised.
(e) Payment Upon Exercise. Common Stock purchased upon the exercise of
an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise
provide in an Option Agreement, by (i) delivery of an irrevocable and
unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price or (ii) delivery by the
Participant to the Company of a copy of
irrevocable and unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price;
(3) to the extent permitted by the Board and explicitly provided
in an Option Agreement (i) by delivery of shares of Common Stock owned by the
Participant valued at their fair market value as determined by the Board in good
faith ("Fair Market Value"), which Common Stock was owned by the Participant at
least six months prior to such delivery, (ii) by delivery of a promissory note
of the Participant to the Company on terms determined by the Board or (iii) by
payment of such other lawful consideration as the Board may determine; or
(4) by any combination of the above permitted forms of payment.
(f) Deferral. Any Participant who is a participant in a deferred
compensation plan established by the Company may elect with the permission of
the Board and in accordance with rules established by the Board to defer the
receipt of any shares of Common Stock issuable upon the exercise of an Option
provided that such election is irrevocable and made at least that number of days
prior to the exercise of the Option which shall be determined by the Board. The
Participant's account under such deferred compensation plan shall be credited
with a number of stock units equal to the number of shares so deferred.
6. Restricted Stock
(a) Grants. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
(b) Terms and Conditions. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock certificates
issued in respect of a Restricted Stock Award shall be registered in the name of
the Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
7. Other Stock-Based Awards
The Board shall have the right to grant other Awards based upon the
Common Stock having such terms and conditions as the Board may determine,
including the grant of shares based upon certain conditions, the grant of
securities convertible into Common Stock and the grant of stock appreciation
rights.
8. Adjustments for Changes in Common Stock and Certain Other Events
(a) Changes in Capitalization. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the number and class of securities and exercise price per share subject to
each outstanding Option, (iii) the repurchase price per share subject to each
outstanding Restricted Stock Award, and (iv) the terms of each other outstanding
Award shall be appropriately adjusted by the Company (or substituted Awards may
be made, if applicable) to the extent the Board shall determine, in good faith,
that such an adjustment (or substitution) is necessary and appropriate. If this
Section 8(a) applies and Section 8(c) also applies to any event, Section 8(c)
shall be applicable to such event, and this Section 8(a) shall not be
applicable.
(b) Liquidation or Dissolution. In the event of a proposed liquidation
or dissolution of the Company, the Board shall upon written notice (including
electronic notice) to the Participants provide that all then unexercised Options
will (i) become exercisable in full as of a specified time at least 10 business
days prior to the effective date of such liquidation or dissolution and (ii)
terminate effective upon such liquidation or dissolution, except to the extent
exercised before such effective date. The Board may specify the effect of a
liquidation or dissolution on any Restricted Stock Award or other Award granted
under the Plan at the time of the grant of such Award.
(c) Acquisition Events
(1) Definition. An "Acquisition Event" shall mean: (a) any merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than 60% of the combined voting power of the
voting securities of the Company or such surviving or acquiring entity
outstanding immediately after such merger or consolidation; (b) any sale of all
or substantially all of the assets of the Company; (c) the complete liquidation
of the Company; or (d) the acquisition of "beneficial ownership" (as defined in
Rule 13d-3 under the Exchange Act) of securities of the Company representing 60%
or more of the combined voting power of the Company's then outstanding
securities (other than through an acquisition of securities directly from the
Company) by any "person," as such term is used in Sections 13(d) and 14(d) of
the
Exchange Act other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any entity owned
directly or indirectly by the stockholders of the Company in substantially the
same proportion as their ownership of stock of the Company.
(2) Consequences of an Acquisition Event on Options. Upon the
occurrence of an Acquisition Event, or the execution by the Company of any
agreement with respect to an Acquisition Event, the Board shall provide that all
outstanding Options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof). For purposes hereof, an Option shall be considered to be assumed if,
following consummation of the Acquisition Event, the Option confers the right to
purchase, for each share of Common Stock subject to the Option immediately prior
to the consummation of the Acquisition Event, the consideration (whether cash,
securities or other property) received as a result of the Acquisition Event by
holders of Common Stock for each share of Common Stock held immediately prior to
the consummation of the Acquisition Event (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of Common Stock); provided, however, that if the
consideration received as a result of the Acquisition Event is not solely common
stock of the acquiring or succeeding corporation (or an affiliate thereof), the
Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise of Options to
consist solely of common stock of the acquiring or succeeding corporation (or an
affiliate thereof) equivalent in fair market value to the per share
consideration received by holders of outstanding shares of Common Stock as a
result of the Acquisition Event.
Notwithstanding the foregoing, if the acquiring or succeeding
corporation (or an affiliate thereof) does not agree to assume, or substitute
for, such Options, then the Board shall, upon written notice (including
electronic notice) to the Participants, provide that all then unexercised
Options will become exercisable in full as of a specified time prior to the
Acquisition Event and will terminate immediately prior to the consummation of
such Acquisition Event, except to the extent exercised by the Participants
before the consummation of such Acquisition Event; provided, however, that in
the event of an Acquisition Event under the terms of which holders of Common
Stock will receive upon consummation thereof a cash payment for each share of
Common Stock surrendered pursuant to such Acquisition Event (the "Acquisition
Price"), then the Board may instead provide that all outstanding Options shall
terminate upon consummation of such Acquisition Event and that each Participant
shall receive, in exchange therefor, a cash payment equal to the amount (if any)
by which (A) the Acquisition Price multiplied by the number of shares of Common
Stock subject to such outstanding Options (whether or not then exercisable),
exceeds (B) the aggregate exercise price of such Options.
(3) Consequences of an Acquisition Event on Restricted Stock
Awards. Upon the occurrence of an Acquisition Event, the repurchase and other
rights of the
Company under each outstanding Restricted Stock Award shall be
assumed or substituted by and shall inure to the benefit of the Company's
successor and shall apply to the cash, securities or other property which the
Common Stock was converted into or exchanged for pursuant to such Acquisition
Event in the same manner and to the same extent as they applied to the Common
Stock subject to such Restricted Stock Award.
(4) Consequences of an Acquisition Event on Other Awards. The
Board shall specify the effect of an Acquisition Event on any other Award
granted under the Plan at the time of the grant of such Award.
(5) Consequences of Certain Terminations After an Acquisition
Event. Each Option, Restricted Stock Award or other Award assumed or substituted
pursuant to this Section 8(c) shall include a provision to the effect that such
Option, Restricted Stock Award or other Award shall become immediately
exercisable (or vested) in full if, on or prior to the first anniversary of the
Acquisition Event, the Participant terminates his or her employment for Good
Reason or is terminated without Cause by the surviving or acquiring corporation.
"Good Reason" shall mean any significant diminution in the Participant's title,
authority or responsibilities from and after such Acquisition Event or any
reduction in the annual cash compensation payable to the Participant from and
after such Acquisition Event. "Cause" shall mean any willful misconduct by the
Participant which affects the business reputation of the Company or willful
failure by the Participant to perform his or her material responsibilities to
the Company (including, without limitation, breach by the Participant of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Participant and the
Company). The Participant shall be considered to have been discharged for
"Cause" if the Company determines, within 30 days after the Participant's
resignation, that discharge for Cause was warranted.
9. Non-Competition
(a) Non-Competition. As a condition to the issuance of Awards and shares
of Common Stock issuable upon exercise of Awards (together with the Awards,
"Securities") pursuant to the Plan, and as a means reasonably designed to
protect the intellectual property, confidential and proprietary information of
the Company, as long as the Participant owns Securities, the Participant will
not, without the prior written consent of the Company based upon approval from
the Board (or any successor entity of the Company), anywhere in the world,
directly or indirectly, engage in, assist (financially or otherwise), associate
with, or perform services (other than on behalf of the Company or any of its
affiliates) in the Company Business, including, without limitation, whether such
engagement, assistance, association or performance is as an individual,
principal, officer, director, proprietor, employee, partner, stockholder or
other investor (other than as a holder of less than five percent (5%) of the
outstanding capital stock of a publicly traded corporation), creditor,
guarantor, consultant, advisor, agent, sales representative or other
participant, or otherwise permit his name to be used or employed with any such
business. "Company Business" shall mean the business of
the Company, including, without limitation, the business of developing,
licensing, installing and maintaining commodities trading and risk management
software and providing consulting and support services substantially related to
such software activities to the foreign exchange, natural gas, crude oil,
refined products and electric power industries.
(b) Non-Interference. As long as a Participant owns Securities, no
Participant shall, without the prior written consent of the Company, directly,
indirectly or as an agent on behalf of or in conjunction with any person, firm,
partnership, corporation or other entity, (a) hire, solicit, encourage the
resignation of, or in any other manner seek to engage or employ any person who
is then, or within the prior twelve (12) months has been, an employee of the
Company or its affiliates, whether or not for compensation and whether as an
officer, covenantor, consultant, advisor, independent sales representative,
independent contractor or participant, or (b) except as may be appropriate to
perform such Participant's employment duties for the Company, contact, solicit,
service or otherwise have any dealings related to Company Business with any
person or entity with whom the Company or its affiliates has a former, current
or prospective business relationship or who is or was at any time during his
employment with the Company (including any predecessor or successor entity) a
customer or client of the Company or its affiliates, or a prospective customer
or client to which the Company or its affiliates has made a written or oral
business proposal.
(c) Effect of Violation. In the event of a violation by a Participant of
the provisions of this Section 9, then all Options held by such Participant
shall be immediately null and void and non-exercisable, and the Company shall
have the right, at any time after such event, to repurchase any shares of Common
Stock issued in connection with Option exercises or other Awards ("Award
Shares") owned by such Participant for an amount equal to the lesser of (i) the
Fair Market Value of the Award Shares repurchased as of the date of such
violation, and (ii) the price paid by the Participant for such Award Shares.
10. General Provisions Applicable to Awards
(a) Transferability of Awards. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.
(b) Documentation. Each Award shall be evidenced by a written instrument
in such form as the Board shall determine, it being understood that an
electronic form of Award shall be deemed to be a written instrument for purposes
of the Plan. Each Award may contain terms and conditions in addition to those
set forth in the Plan.
(c) Board Discretion. Except as otherwise provided by the Plan, each
Award may be made alone or in addition or in relation to any other Award. The
terms of each Award need not be identical, and the Board need not treat
Participants uniformly.
(d) Termination of Status. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) Withholding. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. Except as the Board may otherwise
provide in an Award, when the Common Stock is registered under the Exchange Act,
Participants may, to the extent then permitted under applicable law, satisfy
such tax obligations in whole or in part by delivery of shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at
their Fair Market Value. The Company may, to the extent permitted by law, deduct
any such tax obligations from any payment of any kind otherwise due to a
Participant.
(f) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type and changing the date of exercise or
realization, provided that the Participant's consent to such action shall be
required unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
Without intending to limit the generality of the preceding sentence, the Board
may, without amending the Plan, modify Awards granted to Participants who are
foreign nationals or employed outside the United States to recognize differences
in laws, rules, regulations or customers of such foreign jurisdiction with
respect to tax, securities, currency, employee benefits or other matters.
(g) Conditions on Delivery of Stock. The Company will not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) Acceleration. The Board may at any time provide that any Options
shall become immediately exercisable in full or in part, that any Restricted
Stock Awards
shall be free of restrictions in full or in part or that any other Awards may
become exercisable in full or in part or free of some or all restrictions or
conditions, or otherwise realizable in full or in part, as the case may be.
11. Miscellaneous
(a) No Right To Employment or Other Status. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then a Participant who exercises an Option between the record date
and the distribution date for such stock dividend shall be entitled to receive,
on the distribution date, the stock dividend with respect to the shares of
Common Stock acquired upon such Option exercise, notwithstanding the fact that
such shares were not outstanding as of the close of business on the record date
for such stock dividend.
(c) Effective Date and Term of Plan. The Plan is effective as of May 2,
2001, the date on which it was adopted by the Board (the "Effective Date"). No
Awards shall be granted under the Plan after the completion of ten years from
the Effective Date, but Awards previously granted may extend beyond that date.
(d) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time.
(e) Governing Law. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
Adopted by the Board of Directors on
May 2, 2001
CAMINUS CORPORATION
Amendment No. 1
To
2001 Non-Officer Employee Stock Incentive Plan
Section 4 of the 2001 Non-Officer Employee Stock Incentive Plan (the
"Plan") of Caminus Corporation, a Delaware corporation, is hereby amended to
increase from 700,000 to 1,050,000 the number of shares of Common Stock, $0.01
par value per share, authorized for issuance under the Plan.
Except to the extent amended hereby, the Plan is in all respects hereby
ratified and confirmed and shall continue in full force and effect.