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Exhibit
10.1
Forms of Management
Time-Based Restricted Stock Unit Agreements
U.S. Resident
Form
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Name: |
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Number of
Stock Units: |
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Date of
Grant: |
S UN G
ARD C APITAL C ORP .
AND S UN G ARD C
APITAL C ORP . II
M
ANAGEMENT T IME -B
ASED R ESTRICTED S
TOCK U NIT A
GREEMENT
THIS AWARD AND ANY
SECURITIES ISSUED UPON THE PAYMENT OF THIS RESTRICTED STOCK UNIT
AWARD ARE SUBJECT TO RESTRICTIONS ON VOTING AND TRANSFER AND
REQUIREMENTS OF SALE AND OTHER PROVISIONS AS SET FORTH IN THE
STOCKHOLDERS AGREEMENT AMONG SUNGARD CAPITAL CORP., SUNGARD CAPITAL
CORP. II, SUNGARD HOLDING CORP., SOLAR CAPITAL CORP. AND CERTAIN
STOCKHOLDERS OF SUNGARD CAPITAL CORP. AND SUNGARD CAPITAL CORP. II,
DATED AS OF AUGUST 10, 2005 (AS IN EFFECT FROM TIME TO TIME, THE
“ STOCKHOLDERS AGREEMENT ”).
SUNGARD CAPITAL CORP. AND
SUNGARD CAPITAL CORP. II STRONGLY ENCOURAGE YOU TO SEEK THE ADVICE
OF YOUR OWN LEGAL AND FINANCIAL ADVISORS WITH RESPECT TO YOUR AWARD
AND ITS TAX CONSEQUENCES.
This agreement (the “
Agreement ”) evidences Restricted Stock Units granted
by SunGard Capital Corp., a Delaware corporation (the “
Company ”), and SunGard Capital Corp. II, a Delaware
corporation (“ Lowerco ” and together with the
Company, the “ Companies ”), to the undersigned
(the “ Grantee ”), pursuant to, and subject to
the terms of, the SunGard 2005 Management Incentive Plan (as
amended from time to time, the “ Plan ”) which
is incorporated herein by reference and of which the Grantee hereby
acknowledges receipt.
1. Grant of Restricted
Stock Units . The Company and Lowerco (as applicable) grant to
the Grantee, as of the above Date of Grant, Restricted Stock Units
for the number of Stock Units stated above (the “ Stock
Units ”), on the terms provided herein and in the Plan.
The Stock Units represent a conditional right to receive Units (as
defined below) consisting of Class A Common shares, Class L
Common shares and Lowerco Preferred shares (the “
Shares ”). The Stock Units evidenced by this Agreement
are granted to the Grantee in an Employment capacity as an
Employee.
2. Stock Unit Account
. The Company shall establish and maintain a Stock Unit account
(the “ Account ”) as a bookkeeping account on
its records for the Grantee and shall record in the Account the
number of Stock Units awarded to the Grantee. No Shares shall be
issued to the Grantee at the time the Award is made, and the
Grantee shall not be, nor have any of the rights or privileges of,
a stockholder of the Companies with respect to any Stock Units
recorded
in the Account or amounts credited to
the Account pursuant to Section 8. The Grantee shall not have
any interest in any fund or specific assets of the Companies by
reason of this Award or the Account established for the
Grantee.
3. Meaning of Certain
Terms . Except as otherwise defined herein, all capitalized
terms used in this Agreement shall have the same meaning as in the
Plan. The terms “ Change of Control ,” “
Disability ” and “ Fair Market Value
” shall have the same meaning as set forth in the
Stockholders Agreement and without regard to any subsequent
amendment thereof. The following terms shall have the following
meanings:
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(a) |
“ Adjustment Event ” means (i) a cash
distribution with respect to Shares paid to all or substantially
all holders of Shares, other than cash dividends in respect of
Shares declared by the Board as part of a regular dividend payment
practice or stated cash dividend policy of the Company following an
IPO, or (ii) a substantially pro rata redemption or
substantially pro rata repurchase (in each case, as applicable, by
the Company, Lowerco or any of their subsidiaries) of all or part
of any class of Shares; |
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(b) |
“ Business ” means any one of the following
business segments: Financial Systems, Availability Services, Higher
Education Systems and Public Sector Systems; |
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(c) |
“ Date of Termination ” means the date that
the termination of the Grantee’s Employment with Employer is
effective on account of the Grantee’s death, the
Grantee’s Disability, termination by Employer for Cause or
without Cause, or by the Grantee, as the case may be; |
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(d) |
“ Employer ” means the Company or, as the
case may be, its Affiliate with whom the Grantee has entered into
an Employment relationship; |
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(e) |
“ Investors ” means investment funds advised
by Silver Lake Partners, Bain Capital, The Blackstone Group,
Goldman, Sachs & Co., Kohlberg Kravis Roberts, Providence
Equity Partners and Texas Pacific Group that own capital stock of
the Company; |
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(f) |
“ Restrictive Covenant ” means any of the
restrictive covenants set forth in Exhibit A, which is incorporated
herein by reference; |
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(g) |
“ Retained Business ” means a Business that
is not being sold in a Sale of a Business; |
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(h) |
“ Sale of a Busines s” means the sale,
exchange or other disposition or transfer of all or substantially
all of the business or assets of one of the Businesses to a
purchaser that is unrelated to the Company or any of the Investors,
provided that a Sale of a Business shall not also constitute a
Change of Control; |
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(i) |
“ Sold Business ” means a Business that is
being sold in a Sale of a Business; |
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(j) |
“ Unit ” means an undivided interest in 1.3
Class A shares, 0.1444 Class L shares and 0.05 Lowerco
Preferred shares, determined at the Date of Grant, as it may be
adjusted as provided herein; and |
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(k) |
“ Year of Termination ” means the fiscal
year for the applicable performance period during which the
Grantee’s Date of Termination occurs. |
As used herein with respect
to the Stock Units, the term “vest” means that the
restrictions on the right to receive payment pursuant to the Stock
Units lapse in whole or in specified part.
4. Vesting of Stock
Units . The Stock Units shall be subject to forfeiture until
the Stock Units vest. The Stock Units shall vest, in accordance
with Schedule A, based on the Grantee’s continued Employment;
provided, however, that:
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(a) |
upon a Sale of a Business where the Grantee is employed by the
Sold Business and is not offered employment with a Retained
Business on substantially similar terms and conditions, or upon the
Grantee’s Employment being terminated involuntarily within
six months following a Change of Control other than for Cause, the
Stock Units shall become fully vested; |
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(b) |
if the Grantee’s Employment terminates without or prior
to a Change of Control as a result of (i) termination of the
Grantee by Employer without Cause, (ii) resignation by the
Grantee or (iii) the Grantee’s Disability or death, then
the Stock Units shall immediately stop vesting, and any unvested
Stock Units shall be forfeited as of the date of termination;
and |
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(c) |
if the Grantee’s Employment terminates as a result of
termination by Employer for Cause, then the Stock Units will be
immediately forfeited by the Grantee and terminate as of the date
of termination. |
5. Payment of Stock
Units . The Grantee’s vested Stock Units shall be paid in
Shares upon the first to occur of (i) a Change of Control that
meets the requirements of a “change in control event”
under Section 409A of the Code, (ii) the Grantee’s
separation from service without Cause, or (iii) the date that
is five years after the Date of Grant. If a Change of Control
occurs before the Stock Units are fully vested, any Stock Units
that subsequently vest shall be paid upon the first to occur of
(i) the Grantee’s separation from service without Cause
or (ii) the date that is five years after the Date of Grant.
Notwithstanding the foregoing, a distribution of Shares under this
Agreement upon separation from service shall only be made upon the
Grantee’s “separation from service” within the
meaning of Section 409A of the Code. When the vested Stock
Units become payable, the Companies will issue to the Grantee
Shares representing the Units underlying the vested Stock Units,
subject to satisfaction of the Grantee’s tax withholding
obligations as described below, within five business days after the
payment event.
6. Certain Calls and
Puts . The Stock Units granted hereunder and the related Shares
are subject to the call and put rights contained in Section 6
of the Stockholders Agreement, except that such put rights shall be
granted only if and to the extent permitted by the Code (including
Section 409A thereof); provided, however, that the call rights
contained in Section 6 of the Stockholders Agreement shall not
apply in the event of a termination resulting from Disability or
death.
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7. Share Restrictions,
etc . Except as expressly provided herein, the Grantee’s
rights hereunder and with respect to Shares received upon payment
in accordance with Section 5 herein are subject to the
restrictions and other provisions contained in the Stockholders
Agreement.
8. Distributions,
Redemptions, etc .
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(a) |
Upon the occurrence of an Adjustment Event, there shall be
credited to the Account an amount equal to the product of
(i) the per-Share amount paid with respect to Shares
underlying the Stock Unit in connection with the Adjustment Event,
multiplied by (ii) the number of Shares of the class of stock
affected by the Adjustment Event that are included in each Unit
immediately prior to the Adjustment Event, multiplied by
(iii) the number of Units underlying the Grantee’s Stock
Units pursuant to this Award. |
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(b) |
If any other cash dividend or distribution is paid with respect
to Shares underlying the Stock Units, there shall be credited to
the Account an amount equal to the product of (i) the
per-Share amount paid with respect to Shares underlying the Stock
Units, multiplied by (ii) the number of Shares of the
applicable class of stock that are included in each Unit,
multiplied by (iii) the number of Units underlying the
Grantee’s Stock Units pursuant to this Award. |
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(c) |
The amount credited to the Account pursuant to this
Section 8 with respect to vested Stock Units is referred to as
the “Bonus Value.” The amount credited to the Account
pursuant to this Section 8 with respect to unvested Stock
Units is referred to as the “Deferred Bonus
Value.” |
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(d) |
On the fifth business day after the end of each calendar
quarter, the Company shall pay to the Grantee in cash an amount
equal to the Bonus Value accrued by the Grantee for such quarter,
subject to applicable tax withholding. The Company shall pay to the
Grantee the Deferred Bonus Value accrued in connection with any
unvested Stock Units on the fifth business day after the date on
which such unvested Stock Units vest, subject to applicable tax
withholding. |
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(e) |
In the case of a redemption or repurchase of Shares, the number
of Shares of the class of stock redeemed or repurchased that are
subject to outstanding Stock Units will be automatically reduced by
an amount proportionate to the percentage reduction in outstanding
Shares of the affected class resulting from the redemption or
repurchase. The Grantee shall be entitled to receive any
information reasonably requested regarding the composition of a
Unit, as adjusted in accordance with this
Section 8. |
9. Forfeiture . Upon
delivery of Shares pursuant to the Stock Units, the Grantee shall
certify on a form acceptable to the Committee that the Grantee is
in compliance with the Restrictive Covenants and all other
agreements between the Grantee and the Company or any of its
Affiliates. If the Company determines that the Grantee is not in
compliance with one or more of the Restrictive Covenants or with
the provisions of any agreement between Grantee and the Company or
any of its Affiliates, and such non-compliance has not been
authorized in advance in a specific written waiver from the Company
or the applicable party, the Committee may cancel
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any unpaid Stock Units. The Company
shall also have the following (and only the following) additional
remedies:
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(a) |
During the six months after any delivery of Shares pursuant to
the Stock Units, such delivery may be rescinded at the
Company’s option if the Grantee fails to comply in any
material respect with the terms of the Restrictive Covenants or of
any other agreement with the Company or any of its affiliates or if
the Grantee breaches any duty to the Company or any of its
Affiliates. The Company shall notify the Grantee in writing of any
such rescission within one year after such delivery. Within ten
days after receiving such a notice from the Company, the Grantee
shall remit or deliver to the Company (i) the amount of any
gain realized upon the sale of any Shares, (ii) any
consideration received upon the exchange of any Shares (or to the
extent that such consideration was not received in the form of
cash, the cash equivalent thereof valued at the time of the
exchange), and (iii) the number of Shares received in
connection with the rescinded delivery. |
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(b) |
The Company shall have the right to offset, against any Shares
and any cash amounts due to the Grantee under or by reason of the
Grantee’s holding the Stock Units, any amounts to which the
Company is entitled as a result of the Grantee’s violation of
the terms of the Restrictive Covenants or of any other agreement
with the Company or any of its affiliates or the Grantee’s
breach of any duty to the Company or any of its Affiliates;
provided, however, that no offset shall accelerate or defer the
distribution date of amounts payable under this Agreement in
violation of Section 409A of the Code, and any offset in
violation of Section 409A shall be null and void. Accordingly,
the Grantee acknowledges that (i) the Company may withhold
delivery of Shares, (ii) the Company may place the proceeds of
any sale or other disposition of Shares in an escrow account of the
Company’s choosing pending resolution of any dispute with the
Company, and (iii) the Company has no liability for any
attendant market risk caused by any such withholding, or escrow,
subject, however, to compliance with the requirements of
Section 409A of the Code. |
The Grantee acknowledges and agrees that
the calculation of damages from a breach of any of the Restrictive
Covenants or of any other agreement with the Company or any of its
Affiliates or of any duty to the Company or any of its Affiliates
would be difficult to calculate accurately and that the right to
offset or other remedy provided for herein is reasonable and not a
penalty. The Grantee further agrees not to challenge the
reasonableness of such provisions even where the Company rescinds,
delays, withholds or escrows Shares or proceeds or uses those
Shares or proceeds as a setoff.
10. Legends, etc.
Shares issued upon the lapse of any restrictions on the Stock Units
shall bear such legends as may be required or provided for under
the terms of the Stockholders Agreement.
11. Transfer of Stock
Units . The Stock Units may only be transferred by the laws of
descent and distribution, or to a legal representative in the event
of the Grantee’s incapacity.
12. Withholding . The
payment of the Shares and other amounts in accordance with this
Agreement will give rise to “wages” subject to
withholding. The Grantee expressly
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acknowledges and agrees that the
Grantee’s rights hereunder, including the right to be issued
Shares in accordance with Section 5 herein and cash paid in
accordance with Section 8 hereof, are subject to the Grantee
promptly paying to the Companies in cash (or by such other means as
may be acceptable to the Administrator in its discretion) all taxes
required to be withheld. The Grantee also authorizes the Companies
and their subsidiaries to withhold such amount from any amounts
otherwise owed to the Grantee. The Grantee may elect to satisfy any
tax withholding obligation with respect to the payment of Shares by
having Shares withheld up to an amount that does not exceed the
minimum applicable withholding tax rate for federal (including
FICA), state, and local tax liabilities.
13. Grant Subject to Plan
Provisions . This Award is made pursuant to the Plan, the terms
of which are incorporated herein by reference, and in all respects
shall be interpreted in accordance with the Plan. The Award and
payment of the Stock Units are subject to interpretations,
regulations and determinations concerning the Plan established from
time to time by the Administrator in accordance with the provisions
of the Plan, including, but not limited to, provisions pertaining
to (i) the registration, qualification or listing of the
shares issued under the Plan, (ii) changes in capitalization
and (iii) other requirements of applicable law. The
Administrator shall have the authority to interpret and construe
the Stock Units pursuant to the terms of the Plan, and its
decisions shall be conclusive as to any questions arising
hereunder.
14. Effect on
Employment . Neither the grant of the Stock Units, nor the
issuance of Shares or other payments in accordance with this
Agreement, shall give the Grantee any right to be retained in the
employ of the Company, Lowerco or any of their Affiliates, affect
the right of the Company, Lowerco or any of their Affiliates to
discharge or discipline the Grantee at any time, or affect any
right of the Grantee to terminate his or her Employment at any
time.
15. Delay in Payments for
Specified Employees . Notwithstanding anything in this
Agreement to the contrary, if the Grantee is a “specified
employee” of a publicly traded corporation under
Section 409A of the Code at the time of separation from
service and if payment of any amount under this Agreement is
required to be delayed for a period of six months after the
separation from service pursuant to Section 409A of the Code,
payment of such amount shall be delayed as required by
Section 409A of the Code, and the accumulated postponed amount
shall be paid in a lump sum payment within 10 days after the end of
the six-month period. If the Grantee dies during the postponement
period prior to the payment of postponed amount, the accumulated
postponed amount shall be paid to the personal representative of
the Grantee’s estate within 60 days after the date of the
Grantee’s death.
16. Section 409A
. It is intended that the Stock Units awarded hereunder shall
comply with the requirements of Section 409A of the Code (and
any regulations and guidelines issued thereunder), and this
Agreement shall be interpreted on a basis consistent with such
intent. Each payment under this Agreement is considered a separate
payment for purposes of Section 409A of the Code. This
Agreement may be amended without the consent of the Grantee in any
respect deemed by the Committee to be necessary in order to
preserve compliance with Section 409A of the Code.
17. Governing Law .
This Agreement and all claims arising out of or based upon this
Agreement or relating to the subject matter hereof shall be
governed by and construed in accordance with the domestic
substantive laws of the State of Delaware without giving effect
to
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any choice or conflict of laws provision
or rule that would cause the application of the domestic
substantive laws of any other jurisdiction.
By acceptance of the Stock
Units, the undersigned agrees hereby to become a party to, and be
bound by the terms of, the Stockholders Agreement as a
“Manager” as defined therein.
Executed as of the Date of
Grant.
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SunGard Capital Corp.
and
SunGard Capital Corp.
II
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SUNGARD CAPITAL CORP.
SUNGARD CAPITAL CORP. II
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By: |
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Grantee
I ACKNOWLEDGE
THAT I HAVE RECEIVED
A COPY OF
THIS A GREEMENT AND
CERTAIN RELATED
INFORMATION , AND THAT
I HAVE READ AND
UNDERSTOOD THESE
DOCUMENTS . I ACCEPT
AND AGREE TO
ALL OF THE
PROVISIONS OF THIS A
GREEMENT .
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Schedule A
Vesting
Schedule
10% of the Stock Units shall vest on the
first anniversary of the Date of Grant (“ Initial Vesting
Date ”); and
The remaining 90% of the Stock Units
shall vest in equal monthly installments over the 48 months
following the Initial Vesting Date starting with the first monthly
anniversary of the Initial Vesting Date.
Exhibit A
Restrictive
Covenants
1. The Grantee will not
render services for any organization or engage directly or
indirectly in any business which, in the judgment and sole
determination of the Chief Executive Officer of the Company or
another senior officer designated by the Committee, is or becomes
competitive with the Company, or which organization or business, or
the rendering of services to such organization or business, is or
becomes otherwise prejudicial to or in conflict with the interests
of the Company. If the Grantee’s employment or other service
with the Company has terminated, the judgment of the Chief
Executive Officer or other designated officer will be based on the
Grantee’s position and responsibilities while employed by the
Company, the Grantee’s post-employment responsibilities and
position with the other organization or business, the extent of
past, current and potential competition or conflict between the
Company and the other organization or business, the effect on the
Company’s customers, suppliers, employees and competitors of
the Grantee’s assuming the post-employment position and such
other considerations as are deemed relevant given the applicable
facts and circumstances.
2. The Grantee will not
disclose to anyone outside the Company, or use other than in the
Company’s business, any confidential or proprietary
information or material relating to the business of the Company,
acquired by the Grantee either during or after employment with the
Company. The Grantee understands that the Company’s
proprietary and confidential information includes, by way of
example: (a) the identity of customers and prospects, their
specific requirements, and the names, addresses and telephone
numbers of individual contacts; (b) prices, renewal dates and
other detailed terms of customer and supplier contracts and
proposals; (c) pricing policies, information about costs,
profits and sales, methods of delivering software and services,
marketing and sales strategies, and software and service
development strategies; (d) source code, object code,
specifications, user manuals, technical manuals and other
documentation for software products; (e) screen designs,
report designs and other designs, concepts and visual expressions
for software products; (f) employment and payroll records;
(g) forecasts, budgets, acquisition models and other
non-public financial information; and (h) expansion plans,
business or development plans, management policies, information
about possible acquisitions or divestitures, potential new
products, markets or market extensions, and other business and
acquisition strategies and policies.
3. The Grantee will promptly
communicate to the Company, in writing, all marketing strategies,
product ideas, software designs and concepts, software enhancement
and improvement ideas, and other ideas and inventions
(collectively, “works and ideas”) pertaining to the
Company’s business, whether or not patentable or
copyrightable, that are made, written, developed, or conceived by
the Grantee, alone or with others, at any time (during or after
business hours) while the Grantee is employed by the Company or
during the three months after the Grantee’s employment
terminates. The Grantee understands that all of those works and
ideas will be the Company’s exclusive property, and by
accepting the Stock Units the Grantee assigns and agrees to assign
all the Grantee’s right, title and interest in those works
and ideas to the Company. The Grantee will sign all documents which
the Company deems necessary to confirm its ownership of those works
and ideas, and the Grantee will cooperate fully with the Company to
allow the Company to take full advantage of those works and ideas,
including the securing of patent and/or copyright protection and/or
other similar rights in the United States and in foreign
countries.
4. The Grantee will not
solicit or contact at any time, directly or through others, for the
purpose or with the effect of competing or interfering with or
harming any part of the Company’s business: (a) any
customer or acquisition target under contract with the Company at
any time during the last two years of the Grantee’s
employment with the Company; (b) any prospective customer or
acquisition target that received or requested a proposal, offer or
letter of intent from the Company at any time during the last two
years of the Grantee’s employment with the Company;
(c) any affiliate of any such customer or prospect;
(d) any of the individual contacts established by the Company
or the Grantee or others at the Company during the period of the
Grantee’s employment with the Company; or (e) any
individual who is an employee or independent contractor of the
Company at the time of the solicitation or contact or who has been
an employee or independent contractor within three months before
such solicitation or contact.
UK Resident
Form
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Name: |
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Number of
Stock Units: |
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Date of
Grant: |
S UN G
ARD C APITAL C ORP .
AND S UN G ARD C
APITAL C ORP . II
M
ANAGEMENT T IME -B
ASED R ESTRICTED S
TOCK U NIT A
GREEMENT
THIS AWARD AND ANY
SECURITIES ISSUED UPON THE PAYMENT OF THIS RESTRICTED STOCK UNIT
AWARD ARE SUBJECT TO RESTRICTIONS ON VOTING AND TRANSFER AND
REQUIREMENTS OF SALE AND OTHER PROVISIONS AS SET FORTH IN THE
STOCKHOLDERS AGREEMENT AMONG SUNGARD CAPITAL CORP., SUNGARD CAPITAL
CORP. II, SUNGARD HOLDING CORP., SOLAR CAPITAL CORP. AND CERTAIN
STOCKHOLDERS OF SUNGARD CAPITAL CORP. AND SUNGARD CAPITAL CORP. II,
DATED AS OF AUGUST 10, 2005 (AS IN EFFECT FROM TIME TO TIME, THE
“ STOCKHOLDERS AGREEMENT ”).
SUNGARD CAPITAL CORP. AND
SUNGARD CAPITAL CORP. II STRONGLY ENCOURAGE YOU TO SEEK THE ADVICE
OF YOUR OWN LEGAL AND FINANCIAL ADVISORS WITH RESPECT TO YOUR AWARD
AND ITS TAX CONSEQUENCES.
This agreement (the “
Agreement ”) evidences Restricted Stock Units granted
by SunGard Capital Corp., a Delaware corporation (the “
Company ”), and SunGard Capital Corp. II, a Delaware
corporation (“ Lowerco ” and together with the
Company, the “ Companies ”), to the undersigned
(the “ Grantee ”), pursuant to, and subject to
the terms of, the SunGard 2005 Management Incentive Plan (as
amended from time to time, the “ Plan ”) which
is incorporated herein by reference and of which the Grantee hereby
acknowledges receipt.
1. Grant of Restricted
Stock Units . The Company and Lowerco (as applicable) grant to
the Grantee, as of the above Date of Grant, Restricted Stock Units
for the number of Stock Units stated above (the “ Stock
Units ”), on the terms provided herein and in the Plan.
The Stock Units represent a conditional right to receive Units (as
defined below) consisting of Class A Common shares, Class L
Common shares and Lowerco Preferred shares (the “
Shares ”). The Stock Units evidenced by this Agreement
are granted to the Grantee in an Employment capacity as an
Employee.
2. Stock Unit Account
. The Company shall establish and maintain a Stock Unit account
(the “ Account ”) as a bookkeeping account on
its records for the Grantee and shall record in the Account the
number of Stock Units awarded to the Grantee. No Shares shall be
issued to the Grantee at the time the Award is made, and the
Grantee shall not be, nor have any of the rights or privileges of,
a shareholder of the Companies with respect to any Stock Units
recorded in the Account or amounts credited to the Account pursuant
to Section 8. The Grantee shall not
have any interest in any fund or
specific assets of the Companies by reason of this Award or the
Account established for the Grantee.
3. Meaning of Certain
Terms . Except as otherwise defined herein, all capitalized
terms used in this Agreement shall have the same meaning as in the
Plan. The terms “ Change of Control ,” “
Disability ” and “ Fair Market Value
” shall have the same meaning as set forth in the
Stockholders Agreement and without regard to any subsequent
amendment thereof. The following terms shall have the following
meanings:
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(a) |
“ Adjustment Event ” means (i) a cash
distribution with respect to Shares paid to all or substantially
all holders of Shares, other than cash dividends in respect of
Shares declared by the Board as part of a regular dividend payment
practice or stated cash dividend policy of the Company following an
IPO, or (ii) a substantially pro rata redemption or
substantially pro rata repurchase (in each case, as applicable, by
the Company, Lowerco or any of their subsidiaries) of all or part
of any class of Shares; |
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(b) |
“ Business ” means any one of the following
business segments: Financial Systems, Availability Services, Higher
Education Systems and Public Sector Systems; |
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(c) |
“ Date of Termination ” means the date that
the termination of the Grantee’s Employment with Employer is
effective on account of the Grantee’s death, the
Grantee’s Disability, termination by Employer for Cause or
without Cause, or by the Grantee, as the case may be; |
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(d) |
“ Employer ” means the Company or, as the
case may be, its Affiliate with whom the Grantee has entered into
an Employment relationship; |
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(e) |
“ Investors ” means investment funds advised
by Silver Lake Partners, Bain Capital, The Blackstone Group,
Goldman, Sachs & Co., Kohlberg Kravis Roberts, Providence
Equity Partners and Texas Pacific Group that own capital stock of
the Company; |
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(f) |
“ Restrictive Covenant ” means any of the
restrictive covenants set forth in Exhibit A, which is
incorporated herein by reference; |
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(g) |
“ Retained Business ” means a Business that
is not being sold in a Sale of a Business; |
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(h) |
“ Sale of a Business ” means the sale,
exchange or other disposition or transfer of all or substantially
all of the business or assets of one of the Businesses to a
purchaser that is unrelated to the Company or any of the Investors,
provided that a Sale of a Business shall not also constitute a
Change of Control; |
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(i) |
“ Sold Business ” means a Business that is
being sold in a Sale of a Business; |
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(j) |
“ Tax” or “Taxes” means any
income tax, social insurance, payroll tax, contributions, payment
on account obligations or other payments; |
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(k) |
“ Unit ” means an undivided interest in 1.3
Class A shares, 0.1444 Class L shares and 0.05 Lowerco
Preferred shares, determined at the Date of Grant, as it may be
adjusted as provided herein; and |
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(l) |
“ Year of Termination ” means the fiscal
year for the applicable performance period during which the
Grantee’s Date of Termination occurs. |
As used herein with respect
to the Stock Units, the term “vest” means that the
restrictions on the right to receive payment pursuant to the Stock
Units lapse in whole or in specified part.
4. Vesting of Stock
Units . The Stock Units shall be subject to forfeiture until
the Stock Units vest. The Stock Units shall vest, in accordance
with Schedule A, based on the Grantee’s continued Employment;
provided, however, that:
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(a) |
upon a Sale of a Business where the Grantee is employed by the
Sold Business and is not offered employment with a Retained
Business on substantially similar terms and conditions, or upon the
Grantee’s Employment being terminated involuntarily within
six months following a Change of Control other than for Cause, the
Stock Units shall become fully vested; |
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(b) |
if the Grantee’s Employment terminates without or prior
to a Change of Control as a result of (i) termination of the
Grantee by Employer without Cause, (ii) resignation by the
Grantee or (iii) the Grantee’s Disability or death, then
the Stock Units shall immediately stop vesting, and any unvested
Stock Units shall be forfeited as of the date of termination;
and |
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(c) |
if the Grantee’s Employment terminates as a result of
termination by Employer for Cause, then the Stock Units will be
immediately forfeited by the Grantee and terminate as of the date
of termination. |
5. Payment of Stock
Units . The Grantee’s vested Stock Units shall be paid in
Shares upon the first to occur of (i) a Change of Control that
meets the requirements of a “change in control event”
under Section 409A of the Code, (ii) the Grantee’s
separation from service without Cause, or (iii) the date that
is five years after the Date of Grant. If a Change of Control
occurs before the Stock Units are fully vested, any Stock Units
that subsequently vest shall be paid upon the first to occur of
(i) the Grantee’s separation from service without Cause
or (ii) the date that is five years after the Date of Grant.
Notwithstanding the foregoing, a distribution of Shares under this
Agreement upon separation from service shall only be made upon the
Grantee’s “separation from service” within the
meaning of Section 409A of the Code. When the vested Stock
Units become payable, the Companies will issue to the Grantee
Shares representing the Units underlying the vested Stock Units,
subject to satisfaction of the Grantee’s Tax withholding and
Employer NIC obligations as described below, within five business
days after the payment event.
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6. Certain Calls and
Puts . The Stock Units granted hereunder and the related Shares
are subject to the call and put rights contained in Section 6
of the Stockholders Agreement, except that such put rights shall be
granted only if and to the extent permitted by the Code (including
Section 409A thereof); provided, however, that the call rights
contained in Section 6 of the Stockholders Agreement shall not
apply in the event of a termination resulting from Disability or
death.
7. Share Restrictions,
etc . Except as expressly provided herein, the Grantee’s
rights hereunder and with respect to Shares received upon payment
in accordance with Section 5 herein are subject to the
restrictions and other provisions contained in the Stockholders
Agreement.
8. Distributions,
Redemptions, etc .
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(a) |
Upon the occurrence of an Adjustment Event, there shall be
credited to the Account an amount equal to the product of
(i) the per-Share amount paid with respect to Shares
underlying the Stock Unit in connection with the Adjustment Event,
multiplied by (ii) the number of Shares of the class of stock
affected by the Adjustment Event that are included in each Unit
immediately prior to the Adjustment Event, multiplied by
(iii) the number of Units underlying the Grantee’s Stock
Units pursuant to this Award. |
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(b) |
If any other cash dividend or distribution is paid with respect
to Shares underlying the Stock Units, there shall be credited to
the Account an amount equal to the product of (i) the
per-Share amount paid with respect to Shares underlying the Stock
Units, multiplied by (ii) the number of Shares of the
applicable class of stock that are included in each Unit,
multiplied by (iii) the number of Units underlying the
Grantee’s Stock Units pursuant to this Award. |
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(c) |
The amount credited to the Account pursuant to this
Section 8 with respect to vested Stock Units is referred to as
the “Bonus Value.” The amount credited to the Account
pursuant to this Section 8 with respect to unvested Stock
Units is referred to as the “Deferred Bonus
Value.” |
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(d) |
On the fifth business day after the end of each calendar
quarter, the Company shall pay to the Grantee in cash an amount
equal to the Bonus Value accrued by the Grantee for such quarter,
subject to applicable tax withholding. The Company shall pay to the
Grantee the Deferred Bonus Value accrued in connection with any
unvested Stock Units on the fifth business day after the date on
which such unvested Stock Units vest, subject to applicable Tax
withholding. |
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(e) |
In the case of a redemption or repurchase of Shares, the number
of Shares of the class of stock redeemed or repurchased that are
subject to outstanding Stock Units will be automatically reduced by
an amount proportionate to the percentage reduction in outstanding
Shares of the affected class resulting from the redemption or
repurchase. The Grantee shall be entitled to receive any
information reasonably requested regarding the composition of a
Unit, as adjusted in accordance with this
Section 8. |
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9. Forfeiture . Upon
delivery of Shares pursuant to the Stock Units, the Grantee shall
certify on a form acceptable to the Committee that the Grantee is
in compliance with the Restrictive Covenants and all other
agreements between the Grantee and the Company or any of its
Affiliates. If the Company determines that the Grantee is not in
compliance with one or more of the Restrictive Covenants or with
the provisions of any agreement between Grantee and the Company or
any of its Affiliates, and such non-compliance has not been
authorized in advance in a specific written waiver from the Company
or the applicable party, the Committee may cancel any unpaid Stock
Units. The Company shall also have the following (and only the
following) additional remedies:
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(a) |
During the six months after any delivery of Shares pursuant to
the Stock Units, such delivery may be rescinded at the
Company’s option if the Grantee fails to comply in any
material respect with the terms of the Restrictive Covenants or of
any other agreement with the Company or any of its Affiliates or if
the Grantee breaches any duty to the Company or any of its
Affiliates. The Company shall notify the Grantee in writing of any
such rescission within one year after such delivery. Within ten
days after receiving such a notice from the Company, the Grantee
shall remit or deliver to the Company (i) the amount of any
gain realized upon the sale of any Shares, (ii) any
consideration received upon the exchange of any Shares (or to the
extent that such consideration was not received in the form of
cash, the cash equivalent thereof valued at the time of the
exchange), and (iii) the number of Shares received in
connection with the rescinded delivery. |
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(b) |
The Company shall have the right to offset, against any Shares
and any cash amounts due to the Grantee under or by reason of the
Grantee’s holding the Stock Units, any amounts to which the
Company is entitled as a result of the Grantee’s violation of
the terms of the Restrictive Covenants or of any other agreement
with the Company or any of its Affiliates or the Grantee’s
breach of any duty to the Company or any of its Affiliates;
provided, however, that no offset shall accelerate or defer the
distribution date of amounts payable under this Agreement in
violation of Section 409A of the Code, and any offset in
violation of Section 409A shall be null and void. Accordingly,
the Grantee acknowledges that (i) the Company may withhold
delivery of Shares, (ii) the Company may place the proceeds of
any sale or other disposition of Shares in an escrow account of the
Company’s choosing pending resolution of any dispute with the
Company, and (iii) the Company has no liability for any
attendant market risk caused by any such withholding, or escrow,
subject, however, to compliance with the requirements of
Section 409A of the Code. |
The Grantee acknowledges and agrees that
the calculation of damages from a breach of any of the Restrictive
Covenants or of any other agreement with the Company or any of its
Affiliates or of any duty to the Company or any of its Affiliates
would be difficult to calculate accurately and that the right to
offset or other remedy provided for herein is reasonable and not a
penalty. The Grantee further agrees not to challenge the
reasonableness of such provisions even where the Company rescinds,
delays, withholds or escrows Shares or proceeds or uses those
Shares or proceeds as a setoff.
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10. Legends, etc.
Shares issued upon the lapse of any restrictions on the Stock Units
shall bear such legends as may be required or provided for under
the terms of the Stockholders Agreement.
11. Transfer of Stock
Units . The Stock Units may only be transferred by the laws of
descent and distribution, or to a legal representative in the event
of the Grantee’s incapacity.
12. Withholding . The
payment of the Shares and other amounts in accordance with this
Agreement will give rise to compensation income subject to
withholding. The Grantee expressly acknowledges and agrees that the
Grantee’s rights hereunder, including the right to be issued
Shares in accordance with Section 5 herein and cash paid in
accordance with Section 8 hereof, are subject to the Grantee
promptly paying to the Companies in cash (or by such other means as
may be acceptable to the Administrator in its discretion) all Taxes
required to be withheld. The Grantee also authorizes the Companies
and their subsidiaries to withhold such amount from any amounts
otherwise owed to the Grantee. The Grantee may elect to satisfy any
Tax withholding obligation with respect to the payment of Shares by
having Shares withheld up to an amount that does not exceed the
minimum applicable withholding Tax.
13. Employer NIC . The
Grantee hereby agrees to accept all liability for and pay all
secondary Class 1 National Insurance Contributions which may be
payable by the Companies (or any successor or any subsidiaries
employing or retaining or previously employing or retaining the
Grantee) arising in connection with the Stock Units or the payment
of the Shares (the “Employer NIC”). The Grantee
acknowledges that the Grantee has executed (or hereby agrees to
execute within the time period specified by the Company) a Form of
Joint Election to effect the transfer of the Employer NIC. The
Employer NIC must be paid in accordance with the Joint Election.
The Grantee further acknowledges and agrees that the
Grantee’s rights hereunder, including the right to be issued
Shares in accordance with Section 5 herein, are subject to the
Grantee paying the Employer NIC in accordance with the Joint
Election.
14. Grant Subject to Plan
Provisions . This Award is made pursuant to the Plan, the terms
of which are incorporated herein by reference, and in all respects
shall be interpreted in accordance with the Plan. The Award and
payment of the Stock Units are subject to interpretations,
regulations and determinations concerning the Plan established from
time to time by the Administrator in accordance with the provisions
of the Plan, including, but not limited to, provisions pertaining
to (i) the registration, qualification or listing of the
shares issued under the Plan, (ii) changes in capitalization
and (iii) other requirements of applicable law. The
Administrator shall have the authority to interpret and construe
the Stock Units pursuant to the terms of the Plan, and its
decisions shall be conclusive as to any questions arising
hereunder.
15. Effect on
Employment . Neither the grant of the Stock Units, nor the
issuance of Shares or other payments in accordance with this
Agreement, shall give the Grantee any right to be retained in the
employ of the Company, Lowerco or any of their Affiliates, affect
the right of the Company, Lowerco or any of their Affiliates to
discharge or discipline the Grantee at any time, or affect any
right of the Grantee to terminate his or her Employment at any
time, subject to applicable local law and the terms of any
employment agreement.
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16. Delay in Payments for
Specified Employees . Notwithstanding anything in this
Agreement to the contrary, if the Grantee is a “specified
employee” of a publicly traded corporation under
Section 409A of the Code at the time of separation from
service and if payment of any amount under this Agreement is
required to be delayed for a period of six months after the
separation from service pursuant to Section 409A of the Code,
payment of such amount shall be delayed as required by
Section 409A of the Code, and the accumulated postponed amount
shall be paid in a lump sum payment within 10 days after the end of
the six-month period. If the Grantee dies during the postponement
period prior to the payment of postponed amount, the accumulated
postponed amount shall be paid to the personal representative of
the Grantee’s estate within 60 days after the date of the
Grantee’s death.
17. Section 409A
. It is intended that the Stock Units awarded hereunder shall
comply with the requirements of Section 409A of the Code (and
any regulations and guidelines issued thereunder), and this
Agreement shall be interpreted on a basis consistent with such
intent. Each payment under this Agreement is considered a separate
payment for purposes of Section 409A of the Code. This
Agreement may be amended without the consent of the Grantee in any
respect deemed by the Committee to be necessary in order to
preserve compliance with Section 409A of the Code.
18. Nature of Grant; No
Entitlement; No Claim for Compensation . Grantee, in accepting
the Stock Units, represents and acknowledges that Grantee’s
participation in the Plan is voluntary; that participation in the
Plan is discretionary and does not form any part of Grantee’s
contract of employment, if any, with the Company or any of its
subsidiaries; and that Grantee has not been induced to participate
in the Plan by any expectation of employment or continued
employment with the Company or any of its subsidiaries. Grantee
furthermore understands and acknowledges that the grant of the
Stock Units is discretionary and a one-time occurrence, does not
constitute any portion of Grantee’s regular remuneration and
is not intended to be taken into account in calculating
service-related benefits, and bears no guarantee or
implic
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