Exhibit
10.1
SUNGARD
2005 MANAGEMENT INCENTIVE
PLAN
As Amended May 12,
2009
Exhibit A, which is incorporated by
reference, defines the terms used in the Plan and sets forth
certain operational rules related to those terms.
The Plan has been established to
advance the interests of the Company and its Affiliates by
providing for the grant to Participants of Stock-based and other
incentive Awards.
The Administrator has discretionary
authority, subject only to the express provisions of the Plan and
the Award Agreements, to interpret the Plan; determine eligibility
for and grant Awards; determine, modify or waive the terms and
conditions of any Award; prescribe forms, rules and procedures; and
otherwise do all things necessary to carry out the purposes of the
Plan. Except as otherwise provided by the express terms of an Award
Agreement, all determinations of the Administrator made under the
Plan will be conclusive and will bind all parties.
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4.
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LIMITS ON
AWARDS UNDER THE PLAN
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(a) Number of
Shares . A maximum of
70,000,000 shares of Class A Common, 7,000,000 shares of Class
L Common, and 2,500,000 shares of Lowerco Preferred may be
delivered in satisfaction of Awards under the Plan. The number of
shares of Stock delivered in satisfaction of Awards shall, for
purposes of the preceding sentence, be determined net of shares of
Stock withheld by the Company in payment of the exercise price of
the Award or in satisfaction of tax withholding requirements with
respect to the Award. The limits set forth in this
Section 4(a) shall be construed to comply with
Section 422 of the Code and the regulations thereunder. To the
extent consistent with the requirements of Section 422 of the
Code and regulations thereunder, Stock issued under awards of an
acquired company that are converted, replaced or adjusted in
connection with the acquisition shall not reduce the number of
shares available for Awards under the Plan.
(b) Type of
Shares . Stock
delivered under the Plan may be authorized but unissued Stock or
previously issued Stock acquired by the Company or any of its
subsidiaries. No fractional shares of Stock will be delivered under
the Plan.
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5.
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ELIGIBILITY
AND PARTICIPATION
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The Administrator will select
Participants from among those key Employees and directors of, and
consultants and advisors to, the Company or its Affiliates who, in
the opinion of the Administrator, are in a position to make a
significant contribution to the success of the Company and its
Affiliates. Eligibility for ISOs is limited to employees of the
Company or of a “parent corporation” or
“subsidiary corporation” of the Company as those terms
are defined in Section 424 of the Code.
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6.
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RULES
APPLICABLE TO AWARDS
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(a) All
Awards
(1) Award
Provisions . The
Administrator will determine the terms of all Awards, subject to
the limitations provided herein, and shall furnish to each
Participant an Award Agreement setting forth the terms applicable
to the Participant’s Award. By entering into an Award
Agreement, the Participant agrees to the terms of the Award and of
the Plan, to the extent not inconsistent with the express terms of
the Award Agreement. Notwithstanding any provision of this Plan to
the contrary, awards of an acquired company that are converted,
replaced or adjusted in connection with the acquisition may contain
terms and conditions that are inconsistent with the terms and
conditions specified herein, as determined by the
Administrator.
(2)
Transferability .
Neither ISOs, nor, except as the Administrator otherwise expressly
provides, other Awards may be transferred other than by will or by
the laws of descent and distribution, and during a
Participant’s lifetime ISOs (and, except as the Administrator
otherwise expressly provides, other non-transferable Awards
requiring exercise) may be exercised only by the
Participant.
(3) Vesting,
Etc. The
Administrator may determine the time or times at which an Award
will vest or become exercisable and the terms on which an Award
requiring exercise will remain exercisable. Without limiting the
foregoing, the Administrator may at any time accelerate the vesting
or exercisability of an Award, regardless of any adverse or
potentially adverse tax consequences resulting from such
acceleration. Unless the Administrator expressly provides
otherwise, however, the following rules will apply if a
Participant’s Employment ceases: Immediately upon the
cessation of Employment an Award requiring exercise will cease to
be exercisable and will terminate, and all other Awards to the
extent not already vested will be forfeited, except
that:
(A) subject to (B) and
(C) below, all Stock Options held by the Participant or the
Participant’s permitted transferees, if any, immediately
prior to the cessation of the Participant’s Employment, to
the extent then exercisable, will remain exercisable for the
shorter of (i) a period of three months or (ii) the
period ending on the latest date on which such Stock Option could
have been exercised without regard to this Section 6(a)(3),
and will thereupon terminate;
(B) all Stock Options held by a
Participant or the Participant’s permitted transferees, if
any, immediately prior to the Participant’s death, to the
extent then exercisable, will remain exercisable for the shorter of
(i) the one year period ending with the first anniversary of
the Participant’s death or (ii) the period ending on the
latest date on which such Stock Options could have been exercised
without regard to this Section 6(a)(3), and will thereupon
terminate; and
(C) all Stock Options held by a
Participant or the Participant’s permitted transferees, if
any, immediately prior to the cessation of the Participant’s
Employment will immediately terminate upon such cessation if such
cessation of Employment has resulted in connection with an act or
failure to act constituting Cause.
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(4) Taxes
. The Administrator will make such
provision for the withholding of taxes as it deems necessary. The
Administrator may, but need not, hold back shares of Stock from an
Award or permit a Participant to tender previously owned shares of
Stock in satisfaction of tax withholding requirements (but not in
excess of the applicable minimum statutory withholding
rate).
(5) Dividend Equivalents,
Etc. To the extent
consistent with Section 409A of the Code, the Administrator
may in its sole discretion provide for the payment of amounts in
cash, or for other adjustments to an Award, upon the payment of a
cash dividend or distribution, or upon a substantially pro rata
redemption or repurchase, with respect to Stock subject to an
Award.
(6) Rights
Limited . Nothing in
the Plan will be construed as giving any person the right to
continued Employment with the Company or its Affiliates, or any
rights as a stockholder except as to shares of Stock actually
issued under the Plan. The loss of potential future profit in
Awards will not constitute an element of damages in the event of
termination of Employment for any reason, even if the termination
is in violation of an obligation of the Company or its Affiliate to
the Participant, except to the extent such potential future profit
is taken into account in determining the current value of an Award
under a recognized valuation model.
(7) Stockholders Agreement
. Unless otherwise
specifically provided, all Awards issued under the Plan and all
Stock issued thereunder will be subject to the Stockholders
Agreement.
(b) Awards Requiring
Exercise
(1) Time And Manner Of
Exercise . Unless the
Administrator expressly provides otherwise, an Award requiring
exercise by the holder will not be deemed to have been exercised
until the Administrator receives a notice of exercise (in form
acceptable to the Administrator) signed by the appropriate person
and accompanied by any payment required under the Award. If the
Award is exercised by any person other than the Participant, the
Administrator may require satisfactory evidence that the person
exercising the Award has the right to do so.
(2) Exercise
Price . The
Administrator will determine the exercise price, if any, of each
Award requiring exercise. Unless the Administrator determines
otherwise, and in all events in the case of a Stock Option (except
as otherwise permitted pursuant to Section 6(a)(5) or
Section 7(b)(1) hereof), the exercise price of an Award
requiring exercise will not be less than the fair market value of
the Stock subject to the Award, determined as of the date of grant,
and in the case of an ISO granted to a ten-percent shareholder
within the meaning of Section 422(b)(6) of the Code, the
exercise price will not be less than 110% of the fair market value
of the Stock subject to the Award, determined as of the date of
grant.
(3) Payment Of Exercise
Price . Where the
exercise of an Award is to be accompanied by payment, the
Administrator may determine the required or permitted forms of
payment, subject to the following: (a) all payments will be by
cash or check acceptable to the
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Administrator, or (b) if so
permitted by the Administrator, (i) through the delivery of
shares of Stock that have a fair market value equal to the exercise
price, except where payment by delivery of shares would adversely
affect the Company’s results of operations under Generally
Accepted Accounting Principles or where payment by delivery of
shares outstanding for less than six months would require
application of securities laws relating to profit realized on such
shares, (ii) where permitted by law, by delivery to the
Company of a promissory note of the person exercising the Award,
payable on such terms as are specified by the Administrator,
(iii) at such time, if any, as the Stock is publicly traded,
through a broker-assisted exercise program acceptable to the
Administrator, (iv) by other means acceptable to the
Administrator, or (v) by any combination of the foregoing
permissible forms of payment. The delivery of shares in payment of
the exercise price under clause (b)(i) above may be accomplished
either by actual delivery or by constructive delivery through
attestation of ownership, subject to such rules as the
Administrator may prescribe.
(4) ISOs
. No ISO may be granted under the
Plan after August 10, 2015, but ISOs previously granted may
extend beyond that date.
(c) Awards Not Requiring
Exercise
Awards of Restricted Stock and
Unrestricted Stock, whether delivered outright or under Awards of
Stock Units or other Awards that do not require exercise, may be
made in exchange for such lawful consideration, including services,
as the Adm