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Exhibit
10.4
Forms of Management
Non-Qualified Performance-Based Class A Option
Agreements
U.S. Resident
Form
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Name: |
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Number of
Shares: |
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Price per
Share: |
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Date of
Grant: |
S UN G
ARD C APITAL C ORP
.
M
ANAGEMENT N ON -Q
UALIFIED P ERFORMANCE -B
ASED C LASS A O
PTION A GREEMENT
THIS AWARD AND ANY
SECURITIES ISSUED UPON EXERCISE OF THIS OPTION 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.
STRONGLY ENCOURAGES 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 a stock option granted by
SunGard Capital Corp., a Delaware corporation (the
“Company”), to the undersigned (the
“Optionee”), 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 Optionee hereby acknowledges
receipt.
1. Grant of Option .
The Company grants to the Optionee, as of the above Date of Grant,
an option (the “Option”) to purchase, in whole or in
part, on the terms provided herein and in the Plan, that total
number of Class A Common shares as set forth in Schedule A
(the “Shares”) at the above Price per Share. The Option
will vest and become exercisable in accordance with Section 3
below.
The Option evidenced by this
Agreement is intended to be a non-qualified option and is granted
to the Optionee in an Employment capacity as an
employee.
2. 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
without regard to any subsequent amendment thereof. The
term
“Performance Period” is
defined in Schedule A. 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 by the Company or
any of its subsidiaries) of the 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) |
“ CEO ” means the Chief Executive Officer of
the Company; |
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(d) |
“ Date of Termination ” means the date that
the termination of Optionee’s Employment with Employer is
effective on account of Optionee’s death, Optionee’s
Disability, termination by Employer for Cause or without Cause, or
by Optionee, as the case may be; |
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(e) |
“ Employer ” means the Company or, as the
case may be, its Affiliate with whom the Optionee has entered into
an Employment relationship; |
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(f) |
“ Family Member ” means, with respect to
Optionee, any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships,
any person sharing the Optionee’s household (other than a
tenant or employee), a trust in which one or more of these persons
have more than fifty percent of the beneficial interest, a
foundation in which one or more of these persons (or Optionee)
control the management of assets, or any other entity in which one
or more of these persons (or Optionee) own more than fifty percent
of the voting interests; |
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(g) |
“ 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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(h) |
“ Restrictive Covenant ” means any of the
restrictive covenants set forth in Exhibit A, which is
incorporated herein by reference; |
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(i) |
“
Vest on a Pro Rata Basis ” means that the vesting of
Optionee’s Option shall continue through the end of the Year
of Termination (but not thereafter), provided that only a portion
of the Option that otherwise would have vested at the end of such
year shall vest, such portion being determined by multiplying
(i) the number of Shares subject to the Option that otherwise
would have vested at the end of such year based upon attainment of
pre-determined performance goals, by
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(ii) (A) the
number of days in which Optionee was employed by Employer during
the Year of Termination divided by (B) 365 (rounded to the
nearest whole number of Shares);
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(j) |
“ 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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(k) |
“ Sold Business ” means a Business that is
being sold in a Sale of a Business; and |
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(l) |
“ Year of Termination ” means the fiscal
year for the applicable Performance Period during which
Optionee’s Date of Termination occurs. |
As used herein with respect
to the Option, the term “vest” means to become
exercisable in whole or in specified part.
3. Vesting of Option .
The Option shall vest in accordance with Schedule A; provided,
however, that:
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(a) |
if the Optionee’s Employment terminates as a result of
(i) termination of the Optionee by Employer without Cause,
(ii) the Optionee’s retirement or (iii) the
Optionee’s Disability or death, then the Option shall Vest on
a Pro Rata Basis; |
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(b) |
if the Optionee’s Employment terminates as a result of
resignation by the Optionee, then the Option shall be deemed to
have stopped vesting as of the beginning of the year containing the
Date of Termination of such Optionee; |
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(c) |
if the Optionee’s Employment terminates as a result of
termination by Employer for Cause, then the Option will be
immediately forfeited by the Optionee and terminate as of the Date
of Termination; and |
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(d) |
upon a Change of Control during the Performance Period, the
Compensation Committee of the Board and the CEO will determine in
mutual consultation the effect of such Change of Control on the
Option, which shall be treated in a manner they jointly consider
equitable under the circumstances. |
4. Exercise of Option
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(a) |
In
General . The latest date on which this Option may be exercised
is ten years from the Date of Grant (the “ Final Exercise
Date ”). Each election to exercise this Option shall be
subject to the terms and conditions of the Plan and shall be in
writing, signed by the Optionee or by his or her executor,
administrator, or permitted transferee (subject to any restrictions
provided under the Plan and the Stockholders Agreement), made
pursuant to and in accordance with the terms and conditions set
forth in the Plan and received by the Company at its principal
offices, accompanied by payment in full as provided in the Plan.
The purchase price may be paid by delivery of cash or check
acceptable to the Administrator or,
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in case of an exercise on
the Final Exercise Date, or after a Sale of a Business where the
Optionee is employed by a Sold Business and is not offered
employment with a Retained Business on substantially similar terms
and conditions or a termination of Employment without Cause or as a
result of the Optionee’s Disability or death, if and to the
extent permitted by the Code (including Section 409A thereof)
and if such exercise would not adversely affect the Company’s
results of operations under Generally Accepted Accounting
Principles, by means of withholding of Shares subject to the Option
with an aggregate Fair Market Value equal to (i) the aggregate
exercise price and (ii) if commercially reasonable for the
Company to so permit (taking into account its cash position in
light of any contractual or legal restrictions) minimum statutory
withholding taxes with respect to such exercise, or by such other
method provided under the Plan and explicitly approved by the
Administrator. In the event that this Option is exercised by a
person other than the Optionee, the Company will be under no
obligation to deliver Shares hereunder unless and until it is
satisfied as to the authority of the Option Holder to exercise this
Option.
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(b)
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Time To Exercise . The
Option must be exercised no later than the Final Exercise Date, and
if not exercised by such date, will thereupon terminate. The option
must also be exercised by the termination of the Optionee’s
Employment and, if not exercised by such date, will thereupon
terminate, provided that, upon termination of the Optionee’s
Employment (i) by Employer without Cause, (ii) by
resignation by the Optionee, or (iii) as a result of a
Disability or death, the Option will remain exercisable until the
earlier of the 90 th day
after the Date of Termination (or the one-year anniversary thereof,
in the case of a termination resulting from Disability or death) or
the Final Exercise Date, and will thereupon terminate, provided
further that the Administrator shall extend the period to exercise
the portion of the Option that vests after termination of
Employment (but not beyond the Final Exercise Date) to the extent
necessary to determine the Actual Internal EBITA (as defined in
Schedule A) for the year containing the Date of Termination (or for
the preceding year, as applicable).
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5. Certain Calls and
Puts . The Options 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.
6. Share Restrictions,
etc. Except as expressly provided herein, the Optionee’s
rights hereunder and with respect to Shares received upon exercise
are subject to the restrictions and other provisions contained in
the Stockholders Agreement.
7. Distributions,
Redemptions, etc. On the occurrence of an Adjustment Event, the
per-Share exercise price of this Option, whether vested or
unvested, shall be reduced by an amount equal to the per-Share
amount paid in connection with the Adjustment Event; provided,
however, that any such reduction shall be limited to that portion
of such amount which would not
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cause the per-Share exercise price of
the Option to be reduced below 25% of the fair market value, as of
the date the Option was granted, of the Shares. In the case of a
redemption or repurchase of the Shares, the number of Shares that
are subject to the Option 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. Notwithstanding the foregoing, adjustments under this
Section shall be made in accordance with the requirements of
Section 409A of the Code, where applicable, so as not to cause
the Option to be considered “deferred compensation”
under Section 409A.
8. Forfeiture . Upon
exercise, payment or delivery pursuant to this Option, Optionee
shall certify on a form acceptable to the Committee that Optionee
is in compliance with the Restrictive Covenants and all other
agreements between Optionee and the Company or any of its
Affiliates. If the Company determines that Optionee is not in
compliance with one or more of the Restrictive Covenants or with
the provisions of any agreement between Optionee 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, the Committee may cancel any unexercised portion. The
Company shall also have the following (and only the following)
additional remedies:
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(a) |
During the six months after any exercise, payment or delivery
of shares pursuant to this Option, such exercise, payment or
delivery may be rescinded at the Company’s option if Optionee
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 Optionee breaches any duty to the
Company or any of its Affiliates. The Company shall notify Optionee
in writing of any such rescission within one year after such
exercise, payment or delivery. Within ten days after receiving such
a notice from the Company, Optionee shall remit or deliver to the
Company (i) the amount of any gain realized upon the sale of
any Shares acquired upon the exercise of this Option, (ii) any
consideration received upon the exchange of any Shares acquired
upon the exercise of this Option (or the extent that such
consideration was not received in the form of cash, the cash
equivalent thereof valued of the time of the exchange) and
(iii) the number of Shares received in connection with the
rescinded exercise. |
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(b) |
The Company shall have the right to offset, against any Shares
and any cash amounts due to Optionee under or by reason of
Optionee’s holding this Option, any amounts to which the
Company is entitled as a result of Optionee’s violation of
the Restrictive Covenants or of any other agreement with the
Company or any of its Affiliates or Optionee’s breach of any
duty to the Company or any of its Affiliates. Accordingly, Optionee
acknowledges that (i) the Company may delay exercise of this
Option or 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 or any of its Affiliates, and
(iii) the Company has no liability for any attendant market
risk caused by any such delay, withholding, or escrow. |
Optionee 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
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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. Optionee 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.
9. Legends, etc.
Shares issued upon exercise shall bear such legends as may be
required or provided for under the terms of the Stockholders
Agreement.
10. Transfer of Option
. This Option may only be transferred by the laws of descent and
distribution, to a legal representative in the event of the
Optionee’s incapacity, or to a Family Member with the consent
of the Compensation Committee of the Board, such consent not to be
unreasonably withheld.
11. Withholding . The
exercise of the Option will give rise to “wages”
subject to withholding. The Optionee expressly acknowledges and
agrees that the Optionee’s rights hereunder, including the
right to be issued Shares upon exercise, are subject to the
Optionee promptly paying to the Company in cash (or by such other
means as may be acceptable to the Administrator in its discretion)
all taxes required to be withheld. The Optionee also authorizes the
Company and its subsidiaries to withhold such amount from any
amounts otherwise owed to the Optionee and the Company may so
withhold as provided in Section 4(a) above.
12. Effect on
Employment . Neither the grant of this Option, nor the issuance
of Shares upon exercise of this Option, shall give the Optionee any
right to be retained in the employ of the Company or any of its
Affiliates, affect the right of the Company or any of its
Affiliates to discharge or discipline such Optionee at any time, or
affect any right of such Optionee to terminate his or her
Employment at any time.
13. 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
any choice or conflict of laws provision or rule that would cause
the application of the domestic substantive laws of any other
jurisdiction.
[ SIGNATURE PAGE
FOLLOWS ]
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By acceptance of this Option,
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. |
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SUNGARD CAPITAL CORP. |
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By: |
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Optionee
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
With respect to each calendar year
within the Performance Period, the Option shall be exercisable to
the extent that the Base Case is achieved during such period as
follows:
(a) if Actual Internal EBITA for
such calendar year is less than or equal to 95% of the Base Case
for that year, the Option will not become exercisable for any
Shares at the end of that year;
(b) if Actual Internal EBITA for
such calendar year is equal to or greater than 106.25% of the Base
Case for that year, the Option shall become exercisable for 1/5 of
the Shares (rounded to the nearest .0001 of a Share) at the end of
that year; and
(c) if Actual Internal EBITA for
such calendar year is between 95% and 106.25% of the Base Case for
that year, the number of Shares that vest will be determined by
interpolation at the linear rate of 1/56.25 of the Shares per one
percentage point of Actual Internal EBITA (rounded to the nearest
.0001 of a Share).
provided that, only through
December 31, 2010, with respect to clauses (a), (b) and
(c), any Shares that do not vest at the end of a particular
calendar year may vest at the end of a subsequent calendar year
based on the cumulative Actual Internal EBITA as a percent of the
cumulative Base Case. For example, if Actual Internal EBITA in 2007
is 100% of the Base Case, then approximately 8.89% of the Shares
vest on December 31, 2007 (1/56.25 x 5 Actual Internal EBITA
percentage points), and if cumulative Actual Internal EBITA for
2007 and 2008 is 105% of the cumulative Base Case, then
approximately 26.67% of the Shares vest on December 31, 2008
([1/56.25 x 10 Internal EBITA percentage points x 2 years] –
8.89%). For vesting in years after 2010, cumulative vesting will
not be available.
For purposes of this Vesting
Schedule:
“Performance
Period” means the five year period beginning on
January 1, 2007.
“Actual Internal
EBITA” means the Company’s actual earnings before
interest, taxes and amortization for a year, determined based on
the Company’s audited financials. Actual Internal EBITA shall
not be reduced by costs of the acquisition of the Company by the
Investors or the Company’s proposed spin-off of its
availability services business or related items, management and
transaction fees payable to the Investors or their affiliates,
extraordinary items (as determined by the Compensation Committee in
consultation with the CEO) or non-cash equity incentive expenses.
Actual Internal EBITA shall be calculated without giving effect to
purchase accounting and shall be adjusted in good faith by the
Compensation Committee in consultation with the CEO to reflect the
consequences of acquisitions and dispositions. Unless otherwise
determined by the Board or Compensation Committee and agreed to by
the CEO, the adjustment for acquisitions and dispositions (made by
the Company in the years 2005 through 2011) shall be based on a
cost of funds used for acquisitions and released by dispositions at
a rate of 11%, compounded at the rate of 7.5% per annum,
provided that transactions with a purchase price in excess of $50
million may merit an alternative adjustment, in which case the rate
will be as mutually agreed by the CEO and the Board or Compensation
Committee. Actual Internal EBITA targets shall be appropriately
adjusted by the Compensation Committee in consultation with the CEO
in case of changes in GAAP promulgated by FASB or the SEC or
changes in depreciation methodology.
“Base Case” means
the Actual Internal EBITA targets for the Company during each
calendar year in the Performance Period, as set forth
below:
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Base Case
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2007 |
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2008 |
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2009 |
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2010 |
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2011 |
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Actual Internal EBITA (in
millions)
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Exhibit A
Restrictive
Covenants
1. Optionee 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
Optionee’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 Optionee’s position and
responsibilities while employed by the Company, Optionee’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 Optionee’s
assuming the post-employment position and such other considerations
as are deemed relevant given the applicable facts and
circumstances.
2. Optionee 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 Optionee either during or after employment with the
Company. Optionee 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. Optionee 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
Optionee, alone or with others, at any time (during or after
business hours) while Optionee is employed by the Company or during
the three months after Optionee’s employment terminates.
Optionee understands that all of those works and ideas will be the
Company’s exclusive property, and by accepting this Option
Optionee assigns and agrees to assign all Optionee’s right,
title and interest in those works and ideas to the Company.
Optionee will sign all documents which the Company deems necessary
to confirm its ownership of those works and ideas, and Optionee
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. Optionee 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 Optionee’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
Optionee’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 Optionee or
others at the Company during the period of Optionee’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.
U.K. Resident
Form
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Name: |
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Number of
Shares: |
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Price per
Share: |
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Date of
Grant: |
S UN G
ARD C APITAL C ORP
.
M
ANAGEMENT N ON -Q
UALIFIED P ERFORMANCE -B
ASED C LASS A O
PTION A GREEMENT
THIS AWARD AND ANY
SECURITIES ISSUED UPON EXERCISE OF THIS OPTION 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.
STRONGLY ENCOURAGES 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 a stock option granted by
SunGard Capital Corp., a Delaware corporation (the
“Company”), to the undersigned (the
“Optionee”), 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 Optionee hereby acknowledges
receipt.
1. Grant of Option .
The Company grants to the Optionee as of the above Date of Grant,
an option (the “Option”) to purchase, in whole or in
part, on the terms provided herein and in the Plan, that total
number of Class A Common shares as set forth in Schedule A
(the “Shares”) at the above Price per Share. The Option
will vest and become exercisable in accordance with Section 3
below.
The Option evidenced by this
Agreement is intended to be a non-qualified option and is granted
to the Optionee in an Employment capacity as an
employee.
2. 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
without regard to any subsequent amendment thereof. The term
“Performance Period” is defined in Schedule A. 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 by the Company or
any of its subsidiaries) of the 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) |
“ CEO ” means the Chief Executive Officer of
the Company; |
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(d) |
“ Date of Termination ” means the date that
the termination of Optionee’s Employment with Employer is
effective on account of Optionee’s death, Optionee’s
Disability, termination by Employer for Cause or without Cause, or
by Optionee, as the case may be; |
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(e) |
“ Employer ” means the Company or, as the
case may be, its Affiliate with whom the Optionee has entered into
an Employment relationship; |
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(f) |
“ 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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(g) |
“ Restrictive Covenant ” means any of the
restrictive covenants set forth in Exhibit A, which is
incorporated herein by reference; |
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(h) |
“ Vest on a Pro Rata Basis ” means that the
vesting of Optionee’s Option shall continue through the end
of the Year of Termination (but not thereafter), provided that only
a portion of the Option that otherwise would have vested at the end
of such year shall vest, such portion being determined by
multiplying (i) the number of Shares subject to the Option
that otherwise would have vested at the end of such year based upon
attainment of pre-determined performance goals, by
(ii) (A) the number of days in which Optionee was
employed by Employer during the Year of Termination divided by
(B) 365 (rounded to the nearest whole number of
Shares); |
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(i) |
“ 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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(j) |
“ Sold Business ” means a Business that is
being sold in a Sale of a Business; |
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(k) |
“ Withholding Taxes ” means any income tax,
social insurance, payroll tax, contributions, payment on account
obligations or other payments required to be withheld by the
Employer; and |
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(l) |
“ Year of Termination ” means the fiscal
year for the applicable Performance Period during which
Optionee’s Date of Termination occurs. |
As used herein with respect
to the Option, the term “vest” means to become
exercisable in whole or in specified part.
3. Vesting of Option .
The Option shall vest in accordance with Schedule A; provided,
however, that:
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(a) |
if the Optionee’s Employment terminates as a result of
(i) termination of the Optionee by Employer without Cause or
(ii) the Optionee’s Disability or death, then the Option
shall Vest on a Pro Rata Basis; |
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(b) |
if the Optionee’s Employment terminates as a result of
resignation by the Optionee, then the Option shall be deemed to
have stopped vesting as of the beginning of the year containing the
Date of Termination of such Optionee; |
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(c) |
if the Optionee’s Employment terminates as a result of
termination by Employer for Cause, then the Option will be
immediately forfeited by the Optionee and terminate as of the Date
of Termination; and |
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(d) |
upon a Change of Control during the Performance Period, the
Compensation Committee of the Board and the CEO will determine in
mutual consultation the effect of such Change of Control on the
Option, which shall be treated in a manner they jointly consider
equitable under the circumstances. |
4. Exercise of Option
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(a) |
In
General . The latest date on which this Option may be exercised
is ten years from the Date of Grant (the “ Final Exercise
Date ”). Each election to exercise this Option shall be
subject to the terms and conditions of the Plan and shall be in
writing, signed by the Optionee or by his or her executor,
administrator, or permitted transferee (subject to any restrictions
provided under the Plan and the Stockholders Agreement), made
pursuant to and in accordance with the terms and conditions set
forth in the Plan and received by the Company at its principal
offices, accompanied by payment in full as provided in the Plan and
the Employer NIC as provided in section 12 of this Agreement. The
purchase price may be paid by delivery of cash or check acceptable
to the Administrator or, in case of an exercise on the Final
Exercise Date, or after a Sale of a Business where the Optionee is
employed by a Sold Business and is not offered employment with a
Retained Business on substantially similar terms and conditions or
a termination of Employment without Cause or as a result of the
Optionee’s Disability or death, if and to the extent
permitted by the Code (including Section 409A thereof) and if
such exercise would not adversely affect any of the Company’s
results of
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operations under Generally
Accepted Accounting Principles, by means of withholding of Shares
subject to the Option with an aggregate Fair Market Value equal to
(i) the aggregate exercise price and (ii) if commercially
reasonable for the Company to so permit (taking into account its
cash position in light of any contractual or legal restrictions)
minimum statutory Withholding Taxes with respect to such exercise,
or by such other method provided under the Plan and explicitly
approved by the Administrator. To the extent that the Shares are
withheld to cover the exercise price or Withholding Taxes in
accordance with the preceding sentence, those Shares will not be
issue
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