EXHIBIT 10.38
JACK HENRY & ASSOCIATES, INC.
2005 NON-QUALIFIED STOCK OPTION PLAN
Adopted by the Stockholders November 1, 2005
(Amended and Restated May 9, 2008)
Jack Henry &
Associates, Inc. (the "Company"), a Delaware corporation, hereby
formulates and adopts the following 2005 Non-Qualified Stock Option
Plan (the "Plan") for non-employee directors of the
Company.
1.
Purpose . The purpose of the Plan is to obtain for the
Company the benefits of the additional incentive inherent in the
ownership of Common Stock, $.01 par value per share, of the Company
("Common Stock"), by selected non-employee directors of the Company
who are important to the success and the growth of the business of
the Company, to help the Company retain the services of such
persons, and to compensate such persons for their service on the
Board of Directors.
2.
Stock Option Committee . The Board of Directors of the
Company shall appoint from among its members a Non-Qualified Stock
Option Committee (the "Committee"), consisting of no fewer than two
directors, none of whom shall be eligible to participate under the
Plan. The Committee shall select one of its members as Chairman and
shall adopt such rules and regulations as it shall deem appropriate
concerning the holding of its meetings and the transaction of its
business. A majority of the whole Committee shall constitute a
quorum, and the act of a majority of the members of the Committee
shall be the act of the Committee. Any member of the Committee may
be removed at any time either with or without cause by resolution
adopted by the Board of Directors of the Company; and any vacancy
on the Committee may at any time be filled by resolution adopted by
the Board of Directors.
3.
Stock Subject to Options . Subject to the provisions of
paragraph 13, the number of shares of Common Stock subject at any
one time to options granted under the Plan plus the number of such
shares then outstanding pursuant to exercises of options granted
under the Plan shall not exceed an aggregate of 700,000 shares. If
and to the extent that options granted under the Plan terminate or
expire in accordance with paragraph 8 without having been
exercised, new options may be granted with respect to the shares
covered by such terminated or expired options, provided that the
granting and terms of such new options shall in all respects comply
with the provisions of the Plan.
There shall be
reserved at all times for sale under the Plan a number of shares of
Common Stock (either authorized and unissued shares or shares held
in the Company's treasury, or both) equal to the maximum number of
shares which may be purchased pursuant to options granted or that
may be granted under the Plan.
Shares transferred
by the Company upon the exercise of any option granted under the
Plan may be shares of authorized and unissued Common Stock, shares
of issued Common Stock held in the Company's treasury, or
both.
4.
Administration . The Committee shall have the authority and
responsibility, within the limitations of the Plan, as amended or
modified from time to time, to calculate the "fair market value" of
shares subject to grant in accordance with paragraph 7, the terms
and provisions of the respective Option
Agreements (which need not be identical), and to make all other
determinations necessary or advisable for administering the
Plan.
Any
or all powers and functions of the Committee may at any time and
from time to time be exercised by the Board of Directors or the
Executive Committee thereof; provided, however, that such powers
and functions of the Committee may be exercised by the Board of
Directors or the Executive Committee, as the case may be, only if,
at the time of such exercise, a majority of the members of the
entire Board of Directors or the Executive Committee, as the case
may be, and a majority of the directors acting in the particular
matter, are not eligible to participate under the Plan.
5.
Eligible Participants . Options may be granted under the
Plan only to non-employee directors of the Company. A "non-employee
director" shall mean a director who is not at the time of the grant
to him of any option under the Plan, or at any time within one year
prior thereto, an employee of the Company or its subsidiaries. A
non-employee director receiving any option under the Plan is
hereinafter referred to as an "Optionee".
6.
Grant of Options .
(a) Annual Grants . On the
third business day following the day of each annual meeting of the
stockholders of the Company, each non-employee director shall
automatically and without further action of the Board or the
Committee be granted a non-statutory stock option (a stock option
which does not qualify under Sections 422 or 423 of the Internal
Revenue Code of 1986) to purchase 10,000 shares of Common Stock,
subject to adjustment and substitution as set forth below. If the
number of shares then remaining available for the grant of stock
options under the Plan is not sufficient for each non-employee
director to be granted an option for 10,000 shares (or the number
of adjusted or substituted shares), then each non-employee director
shall be granted an option for a number of whole shares equal to
the number of shares then remaining available divided by the number
of non-employee directors, disregarding any fractions of a
share.
(b) Grant Limitation .
Notwithstanding any other provision of this Plan, no non-employee
director may be granted options to purchase more than 100,000
shares of Common Stock pursuant to the Plan.
7.
Price .
(a) The option price of each share of
Common Stock purchasable under any option granted under the Plan
shall be 100% of the "fair market value" thereof at the time the
option is granted.
(b) The option price shall become
immediately due upon exercise of the option and shall be payable in
one of the alternative forms specified below: (1) full payment by
certified check payable to the Company; (2) full payment in shares
of Common Stock having a fair market value on the Exercise Date (as
such term is defined below) equal to the option price, which shares
shall have been held for more than six months by the individual;
(3) any combination of certified check payable to the Company
and/or shares of Common Stock valued at fair market value on the
Exercise Date, equal in the aggregate to the option price; or (4)
by a "net exercise" arrangement pursuant to which the Company will
not require a payment of the option price but will reduce the
number of shares of common stock issued upon the exercise by the
largest number of whole shares that has a fair market value on the
Exercise Date that does not exceed the aggregate option price. With
respect to any remaining balance of the aggregate option price, the
Company will accept a cash payment from the Optionee. For purposes
of this subsection (b), the Exercise Date shall be the date on
which written notice of the exercise of the option is delivered to
the Company, together with payment of the option price for the
purchased shares.
(c) The "fair market value" of a share
on a particular date shall be: (1) if shares of Common Stock are
listed on such date on one or more national securities exchanges,
the last reported sale price of a share on such date as recorded on
the composite tape system or if such system does not cover the
Common Stock, the last reported sale price of a share on such date
on the principal national securities exchange on which shares of
the Common Stick are listed, or if no sale of Common Stock took
place on such date, the last reported sale price of a share on the
most recent day on which a sale of a share took place as recorded
by such exchange, as the case may be; or (2) if Common Stock is not
listed on such date on any national securities exchange, the mean
between the last closing bid and asked quotations of a share of
Common Stock on such date (or if none, on the most recent date on
which there were bid and asked quotations of a share), as reported
by the OTC Bulletin Board, or other similar service selected by the
Board of Directors or the Committee.
8.
Exercisability, Vesting and Duration of Options . No option
granted under the Plan shall be exercisable until six months after
the date of grant. Subject to the foregoing, all options granted
under the Plan shall be fully vested and exercisable after the
fourth anniversary of the date of the director's first election or
appointment to the Board of Directors of the Company (the "Initial
Service Date"). For directors who have served less than four
continuous years, and subject to the first sentence of this
paragraph 8, options granted under the Plan shall vest and become
exercisable as follows:
(a) with respect to 25% of the shares
subject to option, after the expiration of one year from the
Initial Service Date;
(b) with respect to 50% of the shares
subject to option, after the expiration of two years from the
Initial Service Date;
(c) with respect to 75% of the shares
subject to option, after the expiration of three years from the
Initial Service Date.
Provided, however,
that any option granted under the Plan shall become exercisable in
its entirety upon the Optionee's death, illness, disability or
retirement as determined by the Committee; and provided further
that no portion of an
