Table of Contents
FILED PURSUANT TO RULE 424(B)(3)
File Number 333-166304
SUNGARD DATA SYSTEMS INC.
SUPPLEMENT NO. 1 TO
MARKET-MAKING PROSPECTUS DATED JUNE 18, 2010
THE DATE OF THIS SUPPLEMENT IS AUGUST 6, 2010
ON AUGUST 6, 2010, SUNGARD DATA SYSTEMS INC. FILED THE ATTACHED
FORM 10-Q FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2010
Table of Contents
Securities and Exchange Commission
þ | Quarterly report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 |
o | Transition report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 |
SunGard Capital Corp. | 000-53653 | |||
SunGard Capital Corp. II | 000-53654 | |||
SunGard Data Systems Inc. | 001-12989 |
SunGard® Capital Corp. II
SunGard® Data Systems Inc.
Delaware | 20-3059890 | |
Delaware | 20-3060101 | |
Delaware | 51-0267091 | |
(State or other jurisdiction of | (IRS Employer | |
incorporation or organization) | Identification No.) |
(Address of principal executive offices, including zip code)
(Registrants’ telephone number, including area code)
SunGard Capital Corp. | Yesþ Noo | |||
SunGard Capital Corp. II | Yesþ Noo | |||
SunGard Data Systems Inc. | Yeso Noþ |
SunGard Capital Corp. | Yeso Noo | |||
SunGard Capital Corp. II | Yeso Noo | |||
SunGard Data Systems Inc. | Yeso Noo |
SunGard Capital Corp. | Large accelerated filero. | Accelerated filero. | Non-accelerated filerþ. | Smaller reporting companyo. | ||||
SunGard Capital Corp. II | Large accelerated filero. | Accelerated filero. | Non-accelerated filerþ. | Smaller reporting companyo. | ||||
SunGard Data Systems Inc. | Large accelerated filero. | Accelerated filero. | Non-accelerated filerþ. | Smaller reporting companyo. |
SunGard Capital Corp. | Yeso Noþ | |||
SunGard Capital Corp. II | Yeso Noþ | |||
SunGard Data Systems Inc. | Yeso Noþ |
SunGard Capital Corp. | 255,385,421 shares of Class A common stock and 28,376,090 shares of Class L common stock | |||
SunGard Capital Corp. II | 100 shares of common stock | |||
SunGard Data Systems Inc. | 100 shares of common stock |
SunGard Capital Corp. II
SunGard Data Systems Inc.
And Subsidiaries
Page | ||||
SunGard Capital Corp. | ||||
2 | ||||
3 | ||||
4 | ||||
SunGard Capital Corp. II | ||||
5 | ||||
6 | ||||
7 | ||||
SunGard Data Systems Inc. | ||||
8 | ||||
9 | ||||
10 | ||||
11 | ||||
25 | ||||
36 | ||||
36 | ||||
37 | ||||
37 | ||||
37 | ||||
37 | ||||
37 | ||||
37 | ||||
37 | ||||
38 | ||||
Table of Contents
1
Table of Contents
December 31, | June 30, | |||||||
2009 | 2010 | |||||||
Assets | ||||||||
Current: | ||||||||
Cash and cash equivalents | $ | 664 | $ | 729 | ||||
Trade receivables, less allowance for doubtful accounts of $49 and $58 | 955 | 842 | ||||||
Earned but unbilled receivables | 181 | 182 | ||||||
Prepaid expenses and other current assets | 189 | 165 | ||||||
Clearing broker assets | 332 | 283 | ||||||
Deferred income taxes | 22 | 22 | ||||||
Total current assets | 2,343 | 2,223 | ||||||
Property and equipment, less accumulated depreciation of $936 and $1,020 | 925 | 888 | ||||||
Software products, less accumulated amortization of $1,091 and $1,183 | 1,020 | 897 | ||||||
Customer base, less accumulated amortization of $954 and $1,056 | 2,294 | 2,151 | ||||||
Other intangible assets, less accumulated amortization of $24 and $21 | 195 | 176 | ||||||
Trade name, less accumulated amortization of $10 and $5 | 1,025 | 1,023 | ||||||
Goodwill | 6,178 | 6,076 | ||||||
Total Assets | $ | 13,980 | $ | 13,434 | ||||
Liabilities and Equity | ||||||||
Current: | ||||||||
Short-term and current portion of long-term debt | $ | 64 | $ | 54 | ||||
Accounts payable | 72 | 55 | ||||||
Accrued compensation and benefits | 319 | 238 | ||||||
Accrued interest expense | 146 | 143 | ||||||
Other accrued expenses | 412 | 380 | ||||||
Clearing broker liabilities | 294 | 251 | ||||||
Deferred revenue | 1,040 | 981 | ||||||
Total current liabilities | 2,347 | 2,102 | ||||||
Long-term debt | 8,251 | 8,220 | ||||||
Deferred income taxes | 1,318 | 1,246 | ||||||
Total liabilities | 11,916 | 11,568 | ||||||
Commitments and contingencies | ||||||||
Noncontrolling interest in preferred stock of SCCII subject to a put option | 51 | 55 | ||||||
Class L common stock subject to a put option | 88 | 90 | ||||||
Class A common stock subject to a put option | 11 | 11 | ||||||
Stockholders’ equity: | ||||||||
Class L common stock, convertible, par value $.001 per share; cumulative 13.5% per annum, compounded quarterly; aggregate liquidation preference of $4,151 million and $4,440 million; 50,000,000 shares authorized, 28,613,930 and 28,644,360 shares issued | — | — | ||||||
Class A common stock, par value $.001 per share; 550,000,000 shares authorized, 257,529,758 and 257,803,713 shares issued | — | — | ||||||
Capital in excess of par value | 2,678 | 2,690 | ||||||
Treasury stock, 248,414 and 268,270 shares of Class L common stock; and 2,239,549 and 2,418,292 shares of Class A common stock | (27 | ) | (29 | ) | ||||
Accumulated deficit | (2,209 | ) | (2,380 | ) | ||||
Accumulated other comprehensive income | (121 | ) | (257 | ) | ||||
Total SunGard Capital Corp. stockholders’ equity | 321 | 24 | ||||||
Noncontrolling interest in preferred stock of SCCII | 1,593 | 1,686 | ||||||
Total equity | 1,914 | 1,710 | ||||||
Total Liabilities and Equity | $ | 13,980 | $ | 13,434 | ||||
2
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Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Revenue: | ||||||||||||||||
Services | $ | 1,242 | $ | 1,141 | $ | 2,489 | $ | 2,278 | ||||||||
License and resale fees | 79 | 119 | 143 | 203 | ||||||||||||
Total products and services | 1,321 | 1,260 | 2,632 | 2,481 | ||||||||||||
Reimbursed expenses | 48 | 38 | 72 | 66 | ||||||||||||
1,369 | 1,298 | 2,704 | 2,547 | |||||||||||||
Costs and expenses: | ||||||||||||||||
Cost of sales and direct operating | 684 | 592 | 1,370 | 1,196 | ||||||||||||
Sales, marketing and administration | 263 | 286 | 532 | 561 | ||||||||||||
Product development | 85 | 93 | 172 | 189 | ||||||||||||
Depreciation and amortization | 72 | 72 | 141 | 147 | ||||||||||||
Amortization of acquisition-related intangible assets | 130 | 122 | 254 | 245 | ||||||||||||
Merger costs and other | 1 | 7 | 1 | 9 | ||||||||||||
1,235 | 1,172 | 2,470 | 2,347 | |||||||||||||
Income from operations | 134 | 126 | 234 | 200 | ||||||||||||
Interest income | — | 1 | 1 | 1 | ||||||||||||
Interest expense and amortization of deferred financing fees | (155 | ) | (160 | ) | (306 | ) | (319 | ) | ||||||||
Other income | 14 | 14 | 21 | 14 | ||||||||||||
Loss before income taxes | (7 | ) | (19 | ) | (50 | ) | (104 | ) | ||||||||
Benefit from (provision for) income taxes | — | (2 | ) | 9 | 29 | |||||||||||
Net loss | (7 | ) | (21 | ) | (41 | ) | (75 | ) | ||||||||
Income attributable to the noncontrolling interest (including $(1) million, $(3) million, $- and $3 million in temporary equity) | (44 | ) | (49 | ) | (86 | ) | (96 | ) | ||||||||
Net loss attributable to SunGard Capital Corp. | $ | (51 | ) | $ | (70 | ) | $ | (127 | ) | $ | (171 | ) | ||||
3
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Six months ended June 30, | ||||||||
2009 | 2010 | |||||||
Cash flow from operations: | ||||||||
Net loss | $ | (41 | ) | $ | (75 | ) | ||
Reconciliation of net loss to cash flow from operations: | ||||||||
Depreciation and amortization | 395 | 392 | ||||||
Deferred income tax benefit | (51 | ) | (59 | ) | ||||
Stock compensation expense | 14 | 17 | ||||||
Amortization of deferred financing costs and debt discount | 20 | 22 | ||||||
Other noncash items | (21 | ) | (13 | ) | ||||
Accounts receivable and other current assets | (17 | ) | 142 | |||||
Accounts payable and accrued expenses | (141 | ) | (124 | ) | ||||
Clearing broker assets and liabilities, net | (3 | ) | 6 | |||||
Deferred revenue | 8 | (62 | ) | |||||
Cash flow from operations | 163 | 246 | ||||||
Investment activities: | ||||||||
Cash paid for acquired businesses, net of cash acquired | (12 | ) | (13 | ) | ||||
Cash paid for property and equipment and software | (167 | ) | (148 | ) | ||||
Other investing activities | 3 | 8 | ||||||
Cash used in investment activities | (176 | ) | (153 | ) | ||||
Financing activities: | ||||||||
Cash received from issuance of common stock | — | 1 | ||||||
Cash received from borrowings, net of fees | 268 | 29 | ||||||
Cash used to repay debt | (724 | ) | (35 | ) | ||||
Cash used to purchase treasury stock | (1 | ) | (3 | ) | ||||
Other financing activities | (2 | ) | (1 | ) | ||||
Cash used in financing activities | (459 | ) | (9 | ) | ||||
Effect of exchange rate changes on cash | 5 | (19 | ) | |||||
Increase (decrease) in cash and cash equivalents | (467 | ) | 65 | |||||
Beginning cash and cash equivalents | 975 | 664 | ||||||
Ending cash and cash equivalents | $ | 508 | $ | 729 | ||||
Supplemental information: | ||||||||
Acquired businesses: | ||||||||
Property and equipment | $ | — | $ | 2 | ||||
Software products | 8 | 3 | ||||||
Customer base | 4 | 10 | ||||||
Goodwill | 4 | 2 | ||||||
Other tangible and intangible assets | — | 3 | ||||||
Deferred income taxes | (1 | ) | (2 | ) | ||||
Purchase price obligations and debt assumed | (1 | ) | (1 | ) | ||||
Net current liabilities assumed | (2 | ) | (4 | ) | ||||
Cash paid for acquired businesses, net of cash acquired of $1 and $2, respectively | $ | 12 | $ | 13 | ||||
4
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December 31, | June 30, | |||||||
2009 | 2010 | |||||||
Assets | ||||||||
Current: | ||||||||
Cash and cash equivalents | $ | 664 | $ | 729 | ||||
Trade receivables, less allowance for doubtful accounts of $49 and $58 | 955 | 842 | ||||||
Earned but unbilled receivables | 181 | 182 | ||||||
Prepaid expenses and other current assets | 189 | 165 | ||||||
Clearing broker assets | 332 | 283 | ||||||
Deferred income taxes | 22 | 22 | ||||||
Total current assets | 2,343 | 2,223 | ||||||
Property and equipment, less accumulated depreciation of $936 and $1,020 | 925 | 888 | ||||||
Software products, less accumulated amortization of $1,091 and $1,183 | 1,020 | 897 | ||||||
Customer base, less accumulated amortization of $954 and $1,056 | 2,294 | 2,151 | ||||||
Other intangible assets, less accumulated amortization of $24 and $21 | 195 | 176 | ||||||
Trade name, less accumulated amortization of $10 and $5 | 1,025 | 1,023 | ||||||
Goodwill | 6,178 | 6,076 | ||||||
Total Assets | $ | 13,980 | $ | 13,434 | ||||
Liabilities and Stockholders’ Equity | ||||||||
Current: | ||||||||
Short-term and current portion of long-term debt | $ | 64 | $ | 54 | ||||
Accounts payable | 72 | 55 | ||||||
Accrued compensation and benefits | 319 | 238 | ||||||
Accrued interest expense | 146 | 143 | ||||||
Other accrued expenses | 412 | 380 | ||||||
Clearing broker liabilities | 294 | 251 | ||||||
Deferred revenue | 1,040 | 981 | ||||||
Total current liabilities | 2,347 | 2,102 | ||||||
Long-term debt | 8,251 | 8,220 | ||||||
Deferred income taxes | 1,318 | 1,246 | ||||||
Total liabilities | 11,916 | 11,568 | ||||||
Commitments and contingencies | ||||||||
Preferred stock subject to a put option | 38 | 39 | ||||||
Stockholders’ equity: | ||||||||
Preferred stock, par value $.001 per share; cumulative 11.5% per annum, compounded quarterly; aggregate liquidation preference of $1,627 million and $1,723 million; 14,999,000 shares authorized, 9,904,863 and 9,915,398 issued | — | — | ||||||
Common stock, par value $.001 per share; 1,000 shares authorized, 100 shares issued and outstanding | — | — | ||||||
Capital in excess of par value | 3,724 | 3,737 | ||||||
Treasury stock, 86,008 and 92,883 shares | (10 | ) | (11 | ) | ||||
Accumulated deficit | (1,567 | ) | (1,642 | ) | ||||
Accumulated other comprehensive income | (121 | ) | (257 | ) | ||||
Total stockholders’ equity | 2,026 | 1,827 | ||||||
Total Liabilities and Stockholders’ Equity | $ | 13,980 | $ | 13,434 | ||||
5
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Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Revenue: | ||||||||||||||||
Services | $ | 1,242 | $ | 1,141 | $ | 2,489 | $ | 2,278 | ||||||||
License and resale fees | 79 | 119 | 143 | 203 | ||||||||||||
Total products and services | 1,321 | 1,260 | 2,632 | 2,481 | ||||||||||||
Reimbursed expenses | 48 | 38 | 72 | 66 | ||||||||||||
1,369 | 1,298 | 2,704 | 2,547 | |||||||||||||
Costs and expenses: | ||||||||||||||||
Cost of sales and direct operating | 684 | 592 | 1,370 | 1,196 | ||||||||||||
Sales, marketing and administration | 263 | 286 | 532 | 561 | ||||||||||||
Product development | 85 | 93 | 172 | 189 | ||||||||||||
Depreciation and amortization | 72 | 72 | 141 | 147 | ||||||||||||
Amortization of acquisition-related intangible assets | 130 | 122 | 254 | 245 | ||||||||||||
Merger costs and other | 1 | 7 | 1 | 9 | ||||||||||||
1,235 | 1,172 | 2,470 | 2,347 | |||||||||||||
Income from operations | 134 | 126 | 234 | 200 | ||||||||||||
Interest income | — | 1 | 1 | 1 | ||||||||||||
Interest expense and amortization of deferred financing fees | (155 | ) | (160 | ) | (306 | ) | (319 | ) | ||||||||
Other income | 14 | 14 | 21 | 14 | ||||||||||||
Loss before income taxes | (7 | ) | (19 | ) | (50 | ) | (104 | ) | ||||||||
Benefit from (provision for) income taxes | — | (2 | ) | 9 | 29 | |||||||||||
Net loss | $ | (7 | ) | $ | (21 | ) | $ | (41 | ) | $ | (75 | ) | ||||
6
Table of Contents
(In millions)
(Unaudited)
Six months ended June 30, | ||||||||
2009 | 2010 | |||||||
Cash flow from operations: | ||||||||
Net loss | $ | (41 | ) | $ | (75 | ) | ||
Reconciliation of net loss to cash flow from operations: | ||||||||
Depreciation and amortization | 395 | 392 | ||||||
Deferred income tax benefit | (51 | ) | (59 | ) | ||||
Stock compensation expense | 14 | 17 | ||||||
Amortization of deferred financing costs and debt discount | 20 | 22 | ||||||
Other noncash items | (21 | ) | (13 | ) | ||||
Accounts receivable and other current assets | (17 | ) | 142 | |||||
Accounts payable and accrued expenses | (141 | ) | (124 | ) | ||||
Clearing broker assets and liabilities, net | (3 | ) | 6 | |||||
Deferred revenue | 8 | (62 | ) | |||||
Cash flow from operations | 163 | 246 | ||||||
Investment activities: | ||||||||
Cash paid for acquired businesses, net of cash acquired | (12 | ) | (13 | ) | ||||
Cash paid for property and equipment and software | (167 | ) | (148 | ) | ||||
Other investing activities | 3 | 8 | ||||||
Cash used in investment activities | (176 | ) | (153 | ) | ||||
Financing activities: | ||||||||
Cash received from borrowings, net of fees | 268 | 29 | ||||||
Cash used to repay debt | (724 | ) | (35 | ) | ||||
Cash used to purchase treasury stock | — | (1 | ) | |||||
Other financing activities | (3 | ) | (2 | ) | ||||
Cash used in financing activities | (459 | ) | (9 | ) | ||||
Effect of exchange rate changes on cash | 5 | (19 | ) | |||||
Increase (decrease) in cash and cash equivalents | (467 | ) | 65 | |||||
Beginning cash and cash equivalents | 975 | 664 | ||||||
Ending cash and cash equivalents | $ | 508 | $ | 729 | ||||
Supplemental information: | ||||||||
Acquired businesses: | ||||||||
Property and equipment | $ | — | $ | 2 | ||||
Software products | 8 | 3 | ||||||
Customer base | 4 | 10 | ||||||
Goodwill | 4 | 2 | ||||||
Other tangible and intangible assets | — | 3 | ||||||
Deferred income taxes | (1 | ) | (2 | ) | ||||
Purchase price obligations and debt assumed | (1 | ) | (1 | ) | ||||
Net current liabilities assumed | (2 | ) | (4 | ) | ||||
Cash paid for acquired businesses, net of cash acquired of $1 and $2, respectively | $ | 12 | $ | 13 | ||||
7
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(In millions except share and per-share amounts)
(Unaudited)
December 31, | June 30, | |||||||
2009 | 2010 | |||||||
Assets | ||||||||
Current: | ||||||||
Cash and cash equivalents | $ | 664 | $ | 729 | ||||
Trade receivables, less allowance for doubtful accounts of $49 and $58 | 955 | 842 | ||||||
Earned but unbilled receivables | 181 | 182 | ||||||
Prepaid expenses and other current assets | 189 | 165 | ||||||
Clearing broker assets | 332 | 283 | ||||||
Deferred income taxes | 22 | 22 | ||||||
Total current assets | 2,343 | 2,223 | ||||||
Property and equipment, less accumulated depreciation of $936 and $1,020 | 925 | 888 | ||||||
Software products, less accumulated amortization of $1,091 and $1,183 | 1,020 | 897 | ||||||
Customer base, less accumulated amortization of $954 and $1,056 | 2,294 | 2,151 | ||||||
Other intangible assets, less accumulated amortization of $24 and $21 | 195 | 176 | ||||||
Trade name, less accumulated amortization of $10 and $5 | 1,025 | 1,023 | ||||||
Goodwill | 6,178 | 6,076 | ||||||
Total Assets | $ | 13,980 | $ | 13,434 | ||||
Liabilities and Stockholder’s Equity | ||||||||
Current: | ||||||||
Short-term and current portion of long-term debt | $ | 64 | $ | 54 | ||||
Accounts payable | 72 | 55 | ||||||
Accrued compensation and benefits | 319 | 238 | ||||||
Accrued interest expense | 146 | 143 | ||||||
Other accrued expenses | 413 | 382 | ||||||
Clearing broker liabilities | 294 | 251 | ||||||
Deferred revenue | 1,040 | 981 | ||||||
Total current liabilities | 2,348 | 2,104 | ||||||
Long-term debt | 8,251 | 8,220 | ||||||
Deferred income taxes | 1,314 | 1,241 | ||||||
Total liabilities | 11,913 | 11,565 | ||||||
Commitments and contingencies | ||||||||
Stockholder’s equity: | ||||||||
Common stock, par value $.01 per share; 100 shares authorized, issued and oustanding | — | — | ||||||
Capital in excess of par value | 3,755 | 3,768 | ||||||
Accumulated deficit | (1,567 | ) | (1,642 | ) | ||||
Accumulated other comprehensive income | (121 | ) | (257 | ) | ||||
Total stockholder’s equity | 2,067 | 1,869 | ||||||
Total Liabilities and Stockholder’s Equity | $ | 13,980 | $ | 13,434 | ||||
8
Table of Contents
(In millions)
(Unaudited)
Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Revenue: | ||||||||||||||||
Services | $ | 1,242 | $ | 1,141 | $ | 2,489 | $ | 2,278 | ||||||||
License and resale fees | 79 | 119 | 143 | 203 | ||||||||||||
Total products and services | 1,321 | 1,260 | 2,632 | 2,481 | ||||||||||||
Reimbursed expenses | 48 | 38 | 72 | 66 | ||||||||||||
1,369 | 1,298 | 2,704 | 2,547 | |||||||||||||
Costs and expenses: | ||||||||||||||||
Cost of sales and direct operating | 684 | 592 | 1,370 | 1,196 | ||||||||||||
Sales, marketing and administration | 263 | 286 | 532 | 561 | ||||||||||||
Product development | 85 | 93 | 172 | 189 | ||||||||||||
Depreciation and amortization | 72 | 72 | 141 | 147 | ||||||||||||
Amortization of acquisition-related intangible assets | 130 | 122 | 254 | 245 | ||||||||||||
Merger costs and other | 1 | 7 | 1 | 9 | ||||||||||||
1,235 | 1,172 | 2,470 | 2,347 | |||||||||||||
Income from operations | 134 | 126 | 234 | 200 | ||||||||||||
Interest income | — | 1 | 1 | 1 | ||||||||||||
Interest expense and amortization of deferred financing fees | (155 | ) | (160 | ) | (306 | ) | (319 | ) | ||||||||
Other income | 14 | 14 | 21 | 14 | ||||||||||||
Loss before income taxes | (7 | ) | (19 | ) | (50 | ) | (104 | ) | ||||||||
Benefit from (provision for) income taxes | — | (2 | ) | 9 | 29 | |||||||||||
Net loss | $ | (7 | ) | $ | (21 | ) | $ | (41 | ) | $ | (75 | ) | ||||
9
Table of Contents
(In millions)
(Unaudited)
Six months ended June 30, | ||||||||
2009 | 2010 | |||||||
Cash flow from operations: | ||||||||
Net loss | $ | (41 | ) | $ | (75 | ) | ||
Reconciliation of net loss to cash flow from operations: | ||||||||
Depreciation and amortization | 395 | 392 | ||||||
Deferred income tax benefit | (52 | ) | (60 | ) | ||||
Stock compensation expense | 14 | 17 | ||||||
Amortization of deferred financing costs and debt discount | 20 | 22 | ||||||
Other noncash items | (21 | ) | (13 | ) | ||||
Accounts receivable and other current assets | (17 | ) | 142 | |||||
Accounts payable and accrued expenses | (140 | ) | (122 | ) | ||||
Clearing broker assets and liabilities, net | (3 | ) | 6 | |||||
Deferred revenue | 8 | (62 | ) | |||||
Cash flow from operations | 163 | 247 | ||||||
Investment activities: | ||||||||
Cash paid for acquired businesses, net of cash acquired | (12 | ) | (13 | ) | ||||
Cash paid for property and equipment and software | (167 | ) | (148 | ) | ||||
Other investing activities | 3 | 8 | ||||||
Cash used in investment activities | (176 | ) | (153 | ) | ||||
Financing activities: | ||||||||
Cash received from borrowings, net of fees | 268 | 29 | ||||||
Cash used to repay debt | (724 | ) | (35 | ) | ||||
Other financing activities | (3 | ) | (4 | ) | ||||
Cash used in financing activities | (459 | ) | (10 | ) | ||||
Effect of exchange rate changes on cash | 5 | (19 | ) | |||||
Increase (decrease) in cash and cash equivalents | (467 | ) | 65 | |||||
Beginning cash and cash equivalents | 975 | 664 | ||||||
Ending cash and cash equivalents | $ | 508 | $ | 729 | ||||
Supplemental information: | ||||||||
Acquired businesses: | ||||||||
Property and equipment | $ | — | $ | 2 | ||||
Software products | 8 | 3 | ||||||
Customer base | 4 | 10 | ||||||
Goodwill | 4 | 2 | ||||||
Other tangible and intangible assets | — | 3 | ||||||
Deferred income taxes | (1 | ) | (2 | ) | ||||
Purchase price obligations and debt assumed | (1 | ) | (1 | ) | ||||
Net current liabilities assumed | (2 | ) | (4 | ) | ||||
Cash paid for acquired businesses, net of cash acquired of $1 and $2, respectively | $ | 12 | $ | 13 | ||||
10
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SUNGARD CAPITAL CORP. II
SUNGARD DATA SYSTEMS INC.
11
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Cost | Accumulated Impairment | ||||||||||||||||||||||||||||||||||||
FS | HE | PS | AS | Subtotal | PS | AS | Subtotal | Total | |||||||||||||||||||||||||||||
Balance at December 31, 2009 | $ | 3,457 | $ | 950 | $ | 814 | $ | 2,211 | $ | 7,432 | $ | (128 | ) | $ | (1,126 | ) | $ | (1,254 | ) | $ | 6,178 | ||||||||||||||||
2010 acquisitions | 2 | — | — | 1 | 3 | — | — | — | 3 | ||||||||||||||||||||||||||||
Adjustments related to the Transaction and prior year acquisitions | (1 | ) | — | — | (1 | ) | (2 | ) | — | — | — | (2 | ) | ||||||||||||||||||||||||
Effect of foreign currency translation | (77 | ) | — | (11 | ) | (15 | ) | (103 | ) | — | — | — | (103 | ) | |||||||||||||||||||||||
Balance at June 30, 2010 | $ | 3,381 | $ | 950 | $ | 803 | $ | 2,196 | $ | 7,330 | $ | (128 | ) | $ | (1,126 | ) | $ | (1,254 | ) | $ | 6,076 | ||||||||||||||||
December 31, | June 30, | |||||||
2009 | 2010 | |||||||
Segregated customer cash and treasury bills | $ | 153 | $ | 38 | ||||
Securities owned | 40 | 109 | ||||||
Securities borrowed | 116 | 112 | ||||||
Receivables from customers and other | 23 | 24 | ||||||
Clearing broker assets | $ | 332 | $ | 283 | ||||
Payables to customers | $ | 163 | $ | 57 | ||||
Securities loaned | 95 | 93 | ||||||
Customer securities sold short, not yet purchased | 9 | 4 | ||||||
Payable to brokers and dealers | 27 | 97 | ||||||
Clearing broker liabilities | $ | 294 | $ | 251 | ||||
Notional | Interest rate | |||||||||||||||
Amount | Interest rate | received | ||||||||||||||
Inception | Maturity | (in millions) | paid | (LIBOR) | ||||||||||||
February 2006 | February 2011 | $ | 800 | 5.00 | % | 3-Month | ||||||||||
January 2008 | February 2011 | 750 | 3.17 | % | 3-Month | |||||||||||
January/February 2009 | February 2012 | 1,200 | 1.78 | % | 1-Month | |||||||||||
January/February 2010 | May 2013 | 500 | 1.99 | % | 3-Month | |||||||||||
Total / Weighted Average interest rate | $ | 3,250 | 2.93 | % | ||||||||||||
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Table of Contents
Three months ended | Six months ended | |||||||||||||||||
June 30, | June 30, | |||||||||||||||||
2009 | 2010 | 2009 | 2010 | Classification | ||||||||||||||
Gain recognized in Accumulated Other Comprehensive Loss (OCI) | $ | 16 | $ | 1 | $ | 12 | $ | 3 | OCI | |||||||||
Loss reclassified from accumulated OCI into income | (19 | ) | (18 | ) | (34 | ) | (40 | ) | Interest expense and amortization of deferred financing fees |
Fair Value Measures Using | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
Assets | ||||||||||||||||
Cash and cash equivalents — money market funds | $ | 285 | $ | — | $ | — | $ | 285 | ||||||||
Clearing broker assets — treasury bills | 30 | — | — | 30 | ||||||||||||
Clearing broker assets — securities owned | 109 | — | — | 109 | ||||||||||||
$ | 424 | $ | — | $ | — | $ | 424 | |||||||||
Liabilities | ||||||||||||||||
Clearing broker liabilities — customer securities sold short, not yet purchased | $ | 4 | $ | — | $ | — | $ | 4 | ||||||||
Interest rate swap agreements and other | — | 65 | — | 65 | ||||||||||||
$ | 4 | $ | 65 | $ | — | $ | 69 | |||||||||
Fair Value Measures Using | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
Assets | ||||||||||||||||
Cash and cash equivalents — money market funds | $ | 168 | $ | — | $ | — | $ | 168 | ||||||||
Clearing broker assets — U.S. treasury bills | 151 | — | — | 151 | ||||||||||||
Clearing broker assets — securities owned | 40 | — | — | 40 | ||||||||||||
$ | 359 | $ | — | $ | — | $ | 359 | |||||||||
Liabilities | ||||||||||||||||
Clearing broker liabilities — customer securities sold short, not yet purchased | $ | 9 | $ | — | $ | — | $ | 9 | ||||||||
Interest rate swap agreements | — | 70 | — | 70 | ||||||||||||
$ | 9 | $ | 70 | $ | — | $ | 79 | |||||||||
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December 31, 2009 | June 30, 2010 | |||||||||||||||
Carrying | Fair | Carrying | Fair | |||||||||||||
Value | Value | Value | Value | |||||||||||||
Floating rate debt | $ | 4,967 | $ | 4,815 | $ | 4,933 | $ | 4,725 | ||||||||
Fixed rate debt | 3,348 | 3,507 | 3,341 | 3,422 |
Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Net loss | $ | (7 | ) | $ | (21 | ) | $ | (41 | ) | $ | (75 | ) | ||||
Foreign currency translation gains (losses) | 147 | (78 | ) | 60 | (139 | ) | ||||||||||
Unrealized gains on derivative instruments | 16 | 1 | 12 | 3 | ||||||||||||
Comprehensive income (loss) | $ | 156 | $ | (98 | ) | $ | 31 | $ | (211 | ) | ||||||
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Table of Contents
SunGard Capital Corp. stockholders | Noncontrolling interest | |||||||||||||||||||||||||||
Class L - | Class A - | |||||||||||||||||||||||||||
temporary | temporary | Permanent | Temporary | Permanent | ||||||||||||||||||||||||
equity | equity | equity | Total | equity | equity | Total | ||||||||||||||||||||||
Balance at December 31, 2009 | $ | 88 | $ | 11 | $ | 321 | $ | 420 | $ | 51 | $ | 1,593 | $ | 1,644 | ||||||||||||||
Net income (loss) | — | — | (171 | ) | (171 | ) | 3 | 93 | 96 | |||||||||||||||||||
Foreign currency translation | — | — | (139 | ) | (139 | ) | — | — | — | |||||||||||||||||||
Net unrealized gain on derivative instruments | — | — | 3 | 3 | — | — | — | |||||||||||||||||||||
Comprehensive income (loss) | — | — | (307 | ) | (307 | ) | 3 | 93 | 96 | |||||||||||||||||||
Stock compensation expense | — | — | 17 | 17 | — | — | — | |||||||||||||||||||||
Termination of put options due to employee terminations and other | (2 | ) | — | — | (2 | ) | (1 | ) | 1 | — | ||||||||||||||||||
Purchase of treasury stock | — | — | (1 | ) | (1 | ) | — | (1 | ) | (1 | ) | |||||||||||||||||
Transfer intrinsic value of vested restricted stock units | 4 | — | (6 | ) | (2 | ) | 2 | — | 2 | |||||||||||||||||||
Balance at June 30, 2010 | $ | 90 | $ | 11 | $ | 24 | $ | 125 | $ | 55 | $ | 1,686 | $ | 1,741 | ||||||||||||||
SunGard Capital Corp. stockholders | Noncontrolling interest | |||||||||||||||||||||||||||
Class L - | Class A - | |||||||||||||||||||||||||||
temporary | temporary | Permanent | Temporary | Permanent | ||||||||||||||||||||||||
equity | equity | equity | Total | equity | equity | Total | ||||||||||||||||||||||
Balance at December 31, 2008 | $ | 111 | $ | 12 | $ | 1,458 | $ | 1,581 | $ | 60 | $ | 1,411 | $ | 1,471 | ||||||||||||||
Net income (loss) | — | — | (127 | ) | (127 | ) | — | 86 | 86 | |||||||||||||||||||
Foreign currency translation | — | — | 60 | 60 | — | — | — | |||||||||||||||||||||
Net unrealized gain on derivative instruments | — | — | 12 | 12 | — | — | — | |||||||||||||||||||||
Comprehensive income (loss) | — | — | (55 | ) | (55 | ) | — | 86 | 86 | |||||||||||||||||||
Stock compensation expense | — | — | 14 | 14 | — | — | — | |||||||||||||||||||||
Termination of put options due to employee terminations and other | (32 | ) | (3 | ) | 39 | 4 | (11 | ) | 7 | (4 | ) | |||||||||||||||||
Purchase of treasury stock | — | — | (1 | ) | (1 | ) | — | — | — | |||||||||||||||||||
Transfer intrinsic value of vested restricted stock units | 5 | 1 | (4 | ) | 2 | (2 | ) | — | (2 | ) | ||||||||||||||||||
Balance at June 30, 2009 | $ | 84 | $ | 10 | $ | 1,451 | $ | 1,545 | $ | 47 | $ | 1,504 | $ | 1,551 | ||||||||||||||
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Table of Contents
Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Revenue: | ||||||||||||||||
Financial systems | $ | 766 | $ | 703 | $ | 1,508 | $ | 1,362 | ||||||||
Higher education | 132 | 131 | 264 | 251 | ||||||||||||
Public sector | 95 | 99 | 186 | 200 | ||||||||||||
Software & processing solutions | 993 | 933 | 1,958 | 1,813 | ||||||||||||
Availability services | 376 | 365 | 746 | 734 | ||||||||||||
$ | 1,369 | $ | 1,298 | $ | 2,704 | $ | 2,547 | |||||||||
Depreciation and amortization: | ||||||||||||||||
Financial systems | $ | 19 | $ | 20 | $ | 38 | $ | 39 | ||||||||
Higher education | 4 | 3 | 7 | 6 | ||||||||||||
Public sector | 2 | 2 | 4 | 5 | ||||||||||||
Software & processing solutions | 25 | 25 | 49 | 50 | ||||||||||||
Availability services | 47 | 47 | 92 | 97 | ||||||||||||
$ | 72 | $ | 72 | $ | 141 | $ | 147 | |||||||||
Income (loss) from operations: | ||||||||||||||||
Financial systems | $ | 138 | $ | 147 | $ | 257 | $ | 261 | ||||||||
Higher education | 35 | 31 | 62 | 62 | ||||||||||||
Public sector | 19 | 19 | 36 | 36 | ||||||||||||
Software & processing solutions | 192 | 197 | 355 | 359 | ||||||||||||
Availability services | 99 | 84 | 188 | 154 | ||||||||||||
Corporate and other items(1) | (156 | ) | (148 | ) | (308 | ) | (304 | ) | ||||||||
Merger and other costs | (1 | ) | (7 | ) | (1 | ) | (9 | ) | ||||||||
$ | 134 | $ | 126 | $ | 234 | $ | 200 | |||||||||
Cash paid for property and equipment and software: | ||||||||||||||||
Financial systems | $ | 18 | $ | 21 | $ | 44 | $ | 41 | ||||||||
Higher education | 2 | 2 | 4 | 4 | ||||||||||||
Public sector | 4 | 3 | 6 | 5 | ||||||||||||
Software & processing solutions | 24 | 26 | 54 | 50 | ||||||||||||
Availability services | 64 | 46 | 113 | 97 | ||||||||||||
Corporate administration | — | — | — | 1 | ||||||||||||
$ | 88 | $ | 72 | $ | 167 | $ | 148 | |||||||||
(1) | Includes corporate administrative expenses, stock compensation expense, management fees paid to the Sponsors, other items and amortization of acquisition-related intangible assets of $130 million and $122 million for the three month periods ended June 30, 2009 and 2010, respectively, and $254 million and $245 million for the six month periods ended June 30, 2009 and 2010, respectively. |
16
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Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Amortization of acquisition-related intangible assets: | ||||||||||||||||
Financial systems | $ | 70 | $ | 62 | $ | 136 | $ | 126 | ||||||||
Higher education | 9 | 9 | 17 | 17 | ||||||||||||
Public sector | 7 | 8 | 15 | 17 | ||||||||||||
Software & processing solutions | 86 | 79 | 168 | 160 | ||||||||||||
Availability services | 44 | 43 | 85 | 85 | ||||||||||||
Corporate administration | — | — | 1 | — | ||||||||||||
$ | 130 | $ | 122 | $ | 254 | $ | 245 | |||||||||
Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Trading Systems | $ | 230 | $ | 128 | $ | 451 | $ | 234 | ||||||||
Wealth Management | 97 | 95 | 194 | 187 | ||||||||||||
Brokerage & Clearance | 71 | 80 | 142 | 158 | ||||||||||||
Capital Markets | 66 | 87 | 129 | 155 | ||||||||||||
Global Trading | 59 | 63 | 113 | 131 | ||||||||||||
Institutional Asset Management | 48 | 50 | 98 | 98 | ||||||||||||
Corporations | 45 | 48 | 89 | 97 | ||||||||||||
Banks | 37 | 42 | 69 | 81 | ||||||||||||
All other | 113 | 110 | 223 | 221 | ||||||||||||
Total Financial Systems | $ | 766 | $ | 703 | $ | 1,508 | $ | 1,362 | ||||||||
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Table of Contents
Supplemental Condensed Consolidating Balance Sheet | ||||||||||||||||||||
December 31, 2009 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Assets | ||||||||||||||||||||
Current: | ||||||||||||||||||||
Cash and cash equivalents | $ | 126 | $ | (9 | ) | $ | 547 | $ | — | $ | 664 | |||||||||
Intercompany balances | (6,563 | ) | 5,787 | 776 | — | — | ||||||||||||||
Trade receivables, net | — | 734 | 402 | — | 1,136 | |||||||||||||||
Prepaid expenses, taxes and other current assets | 2,017 | 77 | 417 | (1,968 | ) | 543 | ||||||||||||||
Total current assets | (4,420 | ) | 6,589 | 2,142 | (1,968 | ) | 2,343 | |||||||||||||
Property and equipment, net | 1 | 603 | 321 | — | 925 | |||||||||||||||
Intangible assets, net | 164 | 3,756 | 614 | — | 4,534 | |||||||||||||||
Intercompany balances | 961 | (691 | ) | (270 | ) | — | — | |||||||||||||
Goodwill | — | 4,895 | 1,283 | — | 6,178 | |||||||||||||||
Investment in subsidiaries | 13,394 | 2,490 | — | (15,884 | ) | — | ||||||||||||||
Total Assets | $ | 10,100 | $ | 17,642 | $ | 4,090 | $ | (17,852 | ) | $ | 13,980 | |||||||||
Liabilities and Stockholder’s Equity | ||||||||||||||||||||
Current: | ||||||||||||||||||||
Short-term and current portion of long-term debt | $ | 45 | $ | 7 | $ | 12 | $ | — | $ | 64 | ||||||||||
Accounts payable and other current liabilities | 272 | 2,901 | 1,079 | (1,968 | ) | 2,284 | ||||||||||||||
Total current liabilities | 317 | 2,908 | 1,091 | (1,968 | ) | 2,348 | ||||||||||||||
Long-term debt | 7,687 | 3 | 561 | — | 8,251 | |||||||||||||||
Intercompany debt | 82 | 103 | (31 | ) | (154 | ) | — | |||||||||||||
Deferred income taxes | (53 | ) | 1,234 | 133 | — | 1,314 | ||||||||||||||
Total liabilities | 8,033 | 4,248 | 1,754 | (2,122 | ) | 11,913 | ||||||||||||||
Total stockholder’s equity | 2,067 | 13,394 | 2,336 | (15,730 | ) | 2,067 | ||||||||||||||
Total Liabilities and Stockholder’s Equity | $ | 10,100 | $ | 17,642 | $ | 4,090 | $ | (17,852 | ) | $ | 13,980 | |||||||||
18
Table of Contents
Supplemental Condensed Consolidating Balance Sheet | ||||||||||||||||||||
June 30, 2010 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Assets | ||||||||||||||||||||
Current: | ||||||||||||||||||||
Cash and cash equivalents | $ | 226 | $ | (7 | ) | $ | 510 | $ | — | $ | 729 | |||||||||
Intercompany balances | (6,954 | ) | 6,148 | 806 | — | — | ||||||||||||||
Trade receivables, net | 4 | 707 | 313 | — | 1,024 | |||||||||||||||
Prepaid expenses, taxes and other current assets | 2,102 | 88 | 423 | (2,143 | ) | 470 | ||||||||||||||
Total current assets | (4,622 | ) | 6,936 | 2,052 | (2,143 | ) | 2,223 | |||||||||||||
Property and equipment, net | — | 595 | 293 | — | 888 | |||||||||||||||
Intangible assets, net | 145 | 3,557 | 545 | — | 4,247 | |||||||||||||||
Intercompany balances | 954 | (691 | ) | (263 | ) | — | — | |||||||||||||
Goodwill | — | 4,896 | 1,180 | — | 6,076 | |||||||||||||||
Investment in subsidiaries | 13,406 | 2,430 | — | (15,836 | ) | — | ||||||||||||||
Total Assets | $ | 9,883 | $ | 17,723 | $ | 3,807 | $ | (17,979 | ) | $ | 13,434 | |||||||||
Liabilities and Stockholder’s Equity | ||||||||||||||||||||
Current: | ||||||||||||||||||||
Short-term and current portion of long-term debt | $ | 45 | $ | 4 | $ | 5 | $ | — | $ | 54 | ||||||||||
Accounts payable and other current liabilities | 262 | 2,991 | 940 | (2,143 | ) | 2,050 | ||||||||||||||
Total current liabilities | 307 | 2,995 | 945 | (2,143 | ) | 2,104 | ||||||||||||||
Long-term debt | 7,666 | 3 | 551 | — | 8,220 | |||||||||||||||
Intercompany debt | 90 | 143 | (38 | ) | (195 | ) | — | |||||||||||||
Deferred income taxes | (49 | ) | 1,176 | 114 | — | 1,241 | ||||||||||||||
Total liabilities | 8,014 | 4,317 | 1,572 | (2,338 | ) | 11,565 | ||||||||||||||
Total stockholder’s equity | 1,869 | 13,406 | 2,235 | (15,641 | ) | 1,869 | ||||||||||||||
Total Liabilities and Stockholder’s Equity | $ | 9,883 | $ | 17,723 | $ | 3,807 | $ | (17,979 | ) | $ | 13,434 | |||||||||
19
Table of Contents
Supplemental Condensed Consolidating Schedule of Operations | ||||||||||||||||||||
Three Months Ended June 30, 2009 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Total revenue | $ | — | $ | 856 | $ | 537 | $ | (24 | ) | $ | 1,369 | |||||||||
Costs and expenses: | ||||||||||||||||||||
Cost of sales and direct operating | — | 365 | 343 | (24 | ) | 684 | ||||||||||||||
Sales, marketing and administration | 22 | 143 | 98 | — | 263 | |||||||||||||||
Product development | — | 37 | 48 | — | 85 | |||||||||||||||
Depreciation and amortization | — | 54 | 18 | — | 72 | |||||||||||||||
Amortization of acquisition-related intangible assets | — | 103 | 27 | — | 130 | |||||||||||||||
Merger costs | 1 | — | — | — | 1 | |||||||||||||||
23 | 702 | 534 | (24 | ) | 1,235 | |||||||||||||||
Income (loss) from operations | (23 | ) | 154 | 3 | — | 134 | ||||||||||||||
Net interest income (expense) | (127 | ) | 34 | (62 | ) | — | (155 | ) | ||||||||||||
Other income (expense) | 89 | (28 | ) | 15 | (62 | ) | 14 | |||||||||||||
Income (loss) before income taxes | (61 | ) | 160 | (44 | ) | (62 | ) | (7 | ) | |||||||||||
Benefit from (provision for) income taxes | 54 | (71 | ) | 17 | — | — | ||||||||||||||
Net income (loss) | $ | (7 | ) | $ | 89 | $ | (27 | ) | $ | (62 | ) | $ | (7 | ) | ||||||
20
Table of Contents
Supplemental Condensed Consolidating Schedule of Operations | ||||||||||||||||||||
Three Months Ended June 30, 2010 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Total revenue | $ | — | $ | 908 | $ | 433 | $ | (43 | ) | $ | 1,298 | |||||||||
Costs and expenses: | ||||||||||||||||||||
Cost of sales and direct operating | — | 385 | 250 | (43 | ) | 592 | ||||||||||||||
Sales, marketing and administration | 22 | 155 | 109 | — | 286 | |||||||||||||||
Product development | — | 11 | 82 | — | 93 | |||||||||||||||
Depreciation and amortization | — | 51 | 21 | — | 72 | |||||||||||||||
Amortization of acquisition-related intangible assets | 1 | 101 | 20 | — | 122 | |||||||||||||||
Merger and other costs | — | 1 | 6 | — | 7 | |||||||||||||||
23 | 704 | 488 | (43 | ) | 1,172 | |||||||||||||||
Income (loss) from operations | (23 | ) | 204 | (55 | ) | — | 126 | |||||||||||||
Net interest income (expense) | (148 | ) | (67 | ) | 56 | — | (159 | ) | ||||||||||||
Other income (expense) | 92 | 11 | 14 | (103 | ) | 14 | ||||||||||||||
Income (loss) before income taxes | (79 | ) | 148 | 15 | (103 | ) | (19 | ) | ||||||||||||
Benefit from (provision for) income taxes | 58 | (56 | ) | (4 | ) | — | (2 | ) | ||||||||||||
Net income (loss) | $ | (21 | ) | $ | 92 | $ | 11 | $ | (103 | ) | $ | (21 | ) | |||||||
Supplemental Condensed Consolidating Schedule of Operations | ||||||||||||||||||||
Six Months Ended June 30, 2009 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Total revenue | $ | — | $ | 1,690 | $ | 1,059 | $ | (45 | ) | $ | 2,704 | |||||||||
Costs and expenses: | ||||||||||||||||||||
Cost of sales and direct operating | — | 737 | 678 | (45 | ) | 1,370 | ||||||||||||||
Sales, marketing and administration | 45 | 297 | 190 | — | 532 | |||||||||||||||
Product development | — | 82 | 90 | — | 172 | |||||||||||||||
Depreciation and amortization | — | 106 | 35 | — | 141 | |||||||||||||||
Amortization of acquisition-related intangible assets | 1 | 203 | 50 | — | 254 | |||||||||||||||
Merger costs | 1 | — | — | — | 1 | |||||||||||||||
47 | 1,425 | 1,043 | (45 | ) | 2,470 | |||||||||||||||
Income (loss) from operations | (47 | ) | 265 | 16 | — | 234 | ||||||||||||||
Net interest income (expense) | (270 | ) | 23 | (58 | ) | — | (305 | ) | ||||||||||||
Other income (expense) | 164 | (11 | ) | 21 | (153 | ) | 21 | |||||||||||||
Income (loss) before income taxes | (153 | ) | 277 | (21 | ) | (153 | ) | (50 | ) | |||||||||||
Benefit from (provision for) income taxes | 112 | (113 | ) | 10 | — | 9 | ||||||||||||||
Net income (loss) | $ | (41 | ) | $ | 164 | $ | (11 | ) | $ | (153 | ) | $ | (41 | ) | ||||||
21
Table of Contents
Supplemental Condensed Consolidating Schedule of Operations | ||||||||||||||||||||
Six Months Ended June 30, 2010 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Total revenue | $ | — | $ | 1,782 | $ | 841 | $ | (76 | ) | $ | 2,547 | |||||||||
Costs and expenses: | ||||||||||||||||||||
Cost of sales and direct operating | — | 771 | 501 | (76 | ) | 1,196 | ||||||||||||||
Sales, marketing and administration | 50 | 293 | 218 | — | 561 | |||||||||||||||
Product development | — | 56 | 133 | — | 189 | |||||||||||||||
Depreciation and amortization | — | 105 | 42 | — | 147 | |||||||||||||||
Amortization of acquisition-related intangible assets | 1 | 202 | 42 | — | 245 | |||||||||||||||
Merger and other costs | — | 1 | 8 | — | 9 | |||||||||||||||
51 | 1,428 | 944 | (76 | ) | 2,347 | |||||||||||||||
Income (loss) from operations | (51 | ) | 354 | (103 | ) | — | 200 | |||||||||||||
Net interest income (expense) | (295 | ) | (123 | ) | 100 | (318 | ) | |||||||||||||
Other income (expense) | 152 | 8 | 14 | (160 | ) | 14 | ||||||||||||||
Income (loss) before income taxes | (194 | ) | 239 | 11 | (160 | ) | (104 | ) | ||||||||||||
Benefit from (provision for) income taxes | 119 | (87 | ) | (3 | ) | — | 29 | |||||||||||||
Net income (loss) | $ | (75 | ) | $ | 152 | $ | 8 | $ | (160 | ) | $ | (75 | ) | |||||||
22
Table of Contents
Supplemental Condensed Consolidating Schedule of Cash Flows | ||||||||||||||||||||
Six Months Ended June 30, 2009 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Cash Flow From Operations | ||||||||||||||||||||
Net income (loss) | $ | (41 | ) | $ | 164 | $ | (11 | ) | $ | (153 | ) | $ | (41 | ) | ||||||
Non cash adjustments | (127 | ) | 271 | 59 | 153 | 356 | ||||||||||||||
Changes in operating assets and liabilities | (254 | ) | (228 | ) | 330 | — | (152 | ) | ||||||||||||
Cash flow provided by (used in) operations | (422 | ) | 207 | 378 | — | 163 | ||||||||||||||
Investment Activities | ||||||||||||||||||||
Intercompany transactions | 664 | (85 | ) | (579 | ) | — | — | |||||||||||||
Cash paid for businesses acquired by the Company, net of cash acquired | — | (12 | ) | — | — | (12 | ) | |||||||||||||
Cash paid for property and equipment and software | — | (122 | ) | (45 | ) | — | (167 | ) | ||||||||||||
Other investing activities | — | 2 | 1 | — | 3 | |||||||||||||||
Cash provided by (used in) investment activities | 664 | (217 | ) | (623 | ) | — | (176 | ) | ||||||||||||
Financing Activities | ||||||||||||||||||||
Net borrowings (repayments) of long-term debt | (746 | ) | (5 | ) | 295 | — | (456 | ) | ||||||||||||
Other financing activities | (3 | ) | — | — | — | (3 | ) | |||||||||||||
Cash provided by (used in) financing activities | (749 | ) | (5 | ) | 295 | — | (459 | ) | ||||||||||||
Effect of exchange rate changes on cash | — | — | 5 | — | 5 | |||||||||||||||
Increase (decrease) in cash and cash equivalents | (507 | ) | (15 | ) | 55 | — | (467 | ) | ||||||||||||
Beginning cash and cash equivalents | 511 | 16 | 448 | — | 975 | |||||||||||||||
Ending cash and cash equivalents | $ | 4 | $ | 1 | $ | 503 | $ | — | $ | 508 | ||||||||||
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Supplemental Condensed Consolidating Schedule of Cash Flows | ||||||||||||||||||||
Six Months Ended June 30, 2010 | ||||||||||||||||||||
Parent | Guarantor | Non-Guarantor | ||||||||||||||||||
(in millions) | Company | Subsidiaries | Subsidiaries | Eliminations | Consolidated | |||||||||||||||
Cash Flow From Operations | ||||||||||||||||||||
Net income (loss) | $ | (75 | ) | $ | 152 | $ | 8 | $ | (160 | ) | $ | (75 | ) | |||||||
Non cash adjustments | (110 | ) | 244 | 64 | 160 | 358 | ||||||||||||||
Changes in operating assets and liabilities | (95 | ) | 92 | (33 | ) | — | (36 | ) | ||||||||||||
Cash flow provided by (used in) operations | (280 | ) | 488 | 39 | — | 247 | ||||||||||||||
Investment Activities | ||||||||||||||||||||
Intercompany transactions | 407 | (381 | ) | (26 | ) | — | — | |||||||||||||
Cash paid for businesses acquired by the Company, net of cash acquired | — | — | (13 | ) | — | (13 | ) | |||||||||||||
Cash paid for property and equipment and software | — | (113 | ) | (35 | ) | — | (148 | ) | ||||||||||||
Other investing activities | — | 10 | (2 | ) | — | 8 | ||||||||||||||
Cash provided by (used in) investment activities | 407 | (484 | ) | (76 | ) | — | (153 | ) | ||||||||||||
Financing Activities | ||||||||||||||||||||
Net borrowings (repayments) of long-term debt | (23 | ) | (2 | ) | 19 | — | (6 | ) | ||||||||||||
Other financing activities | (4 | ) | — | — | — | (4 | ) | |||||||||||||
Cash provided by (used in) financing activities | (27 | ) | (2 | ) | 19 | — | (10 | ) | ||||||||||||
Effect of exchange rate changes on cash | — | — | (19 | ) | — | (19 | ) | |||||||||||||
Increase (decrease) in cash and cash equivalents | 100 | 2 | (37 | ) | — | 65 | ||||||||||||||
Beginning cash and cash equivalents | 126 | (9 | ) | 547 | — | 664 | ||||||||||||||
Ending cash and cash equivalents | $ | 226 | $ | (7 | ) | $ | 510 | $ | — | $ | 729 | |||||||||
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Three Months | Three Months | Percent | Six Months | Six Months | Percent | |||||||||||||||||||||||||||||||||||
Ended | Ended | Increase | Ended | Ended | Increase | |||||||||||||||||||||||||||||||||||
June 30, | June 30, | (Decrease) | June 30, | June 30, | (Decrease) | |||||||||||||||||||||||||||||||||||
2009 | 2010 | 2010 vs. 2009 | 2009 | 2010 | 2010 vs. 2009 | |||||||||||||||||||||||||||||||||||
% of | % of | % of | % of | |||||||||||||||||||||||||||||||||||||
(in millions) | revenue | revenue | revenue | revenue | ||||||||||||||||||||||||||||||||||||
Revenue | ||||||||||||||||||||||||||||||||||||||||
Financial systems (FS) | $ | 766 | 56 | % | $ | 703 | 54 | % | (8 | )% | $ | 1,508 | 56 | % | $ | 1,362 | 53 | % | (10 | )% | ||||||||||||||||||||
Higher education (HE) | 132 | 10 | % | 131 | 10 | % | (1 | )% | 264 | 10 | % | 251 | 10 | % | (5 | )% | ||||||||||||||||||||||||
Public sector (PS) | 95 | 7 | % | 99 | 8 | % | 4 | % | 186 | 7 | % | 200 | 8 | % | 8 | % | ||||||||||||||||||||||||
Software & processing solutions | 993 | 73 | % | 933 | 72 | % | (6 | )% | 1,958 | 72 | % | 1,813 | 71 | % | (7 | )% | ||||||||||||||||||||||||
Availability services (AS) | 376 | 27 | % | 365 | 28 | % | (3 | )% | 746 | 28 | % | 734 | 29 | % | (2 | )% | ||||||||||||||||||||||||
$ | 1,369 | 100 | % | $ | 1,298 | 100 | % | (5 | )% | $ | 2,704 | 100 | % | $ | 2,547 | 100 | % | (6 | )% | |||||||||||||||||||||
Costs and Expenses | ||||||||||||||||||||||||||||||||||||||||
Cost of sales and direct operating | $ | 684 | 50 | % | $ | 592 | 46 | % | (13 | )% | $ | 1,370 | 51 | % | $ | 1,196 | 47 | % | (13 | )% | ||||||||||||||||||||
Sales, marketing and administration | 263 | 19 | % | 286 | 22 | % | 9 | % | 532 | 20 | % | 561 | 22 | % | 5 | % | ||||||||||||||||||||||||
Product development | 85 | 6 | % | 93 | 7 | % | 9 | % | 172 | 6 | % | 189 | 7 | % | 10 | % | ||||||||||||||||||||||||
Depreciation and amortization | 72 | 5 | % | 72 | 6 | % | — | % | 141 | 5 | % | 147 | 6 | % | 4 | % | ||||||||||||||||||||||||
Amortization of acquisition-related intangible assets | 130 | 9 | % | 122 | 9 | % | (6 | )% | 254 | 9 | % | 245 | 10 | % | (4 | )% | ||||||||||||||||||||||||
Merger and other costs | 1 | — | % | 7 | 1 | % | 600 | % | 1 | — | % | 9 | — | % | 800 | % | ||||||||||||||||||||||||
$ | 1,235 | 90 | % | $ | 1,172 | 90 | % | (5 | )% | $ | 2,470 | 91 | % | $ | 2,347 | 92 | % | (5 | )% | |||||||||||||||||||||
Income from Operations | ||||||||||||||||||||||||||||||||||||||||
Financial systems (1) | $ | 138 | 18 | % | $ | 147 | 21 | % | 7 | % | $ | 257 | 17 | % | $ | 261 | 19 | % | 2 | % | ||||||||||||||||||||
Higher education (1) | 35 | 27 | % | 31 | 24 | % | (11 | )% | 62 | 23 | % | 62 | 25 | % | — | % | ||||||||||||||||||||||||
Public sector (1) | 19 | 20 | % | 19 | 19 | % | — | % | 36 | 19 | % | 36 | 18 | % | — | % | ||||||||||||||||||||||||
Software & processing solutions (1) | 192 | 19 | % | 197 | 21 | % | 3 | % | 355 | 18 | % | 359 | 20 | % | 1 | % | ||||||||||||||||||||||||
Availability services (1) | 99 | 26 | % | 84 | 23 | % | (15 | )% | 188 | 25 | % | 154 | 21 | % | (18 | )% | ||||||||||||||||||||||||
Corporate administration | (14 | ) | (1 | )% | (12 | ) | (1 | )% | (14 | )% | (27 | ) | (1 | )% | (29 | ) | (1 | )% | 7 | % | ||||||||||||||||||||
Amortization of acquisition-related intangible assets | (130 | ) | (9 | )% | (122 | ) | (9 | )% | (6 | )% | (254 | ) | (9 | )% | (245 | ) | (10 | )% | (4 | )% | ||||||||||||||||||||
Stock Compensation expense | (7 | ) | (1 | )% | (9 | ) | (1 | )% | 29 | % | (14 | ) | (1 | )% | (17 | ) | (1 | )% | 21 | % | ||||||||||||||||||||
Merger and other costs and other items(2) | (6 | ) | — | % | (12 | ) | (1 | )% | 100 | % | (14 | ) | (1 | )% | (22 | ) | (1 | )% | 57 | % | ||||||||||||||||||||
$ | 134 | 10 | % | $ | 126 | 10 | % | (6 | )% | $ | 234 | 9 | % | $ | 200 | 8 | % | (15 | )% | |||||||||||||||||||||
(1) | Percent of revenue is calculated as a percent of revenue from FS, HE, PS, Software and Processing Solutions, and AS, respectively. | |
(2) | Merger costs and other items include merger costs and other, certain purchase accounting adjustments and management fees paid to the Sponsors, partially offset in each year by capitalized software development costs. |
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Three Months Ended | Three Months Ended | Percent Increase | Six Months Ended | Six Months Ended | Percent Increase | |||||||||||||||||||||||||||||||||||
June 30, | June 30, | (Decrease) | June 30, | June 30, | (Decrease) | |||||||||||||||||||||||||||||||||||
2009 | 2010 | 2010 vs. 2009 | 2009 | 2010 | 2010 vs. 2009 | |||||||||||||||||||||||||||||||||||
% | % | % | % | |||||||||||||||||||||||||||||||||||||
(in millions) | of revenue | of revenue | of revenue | of revenue | ||||||||||||||||||||||||||||||||||||
Financial Systems | ||||||||||||||||||||||||||||||||||||||||
Services | $ | 687 | 50 | % | $ | 600 | 46 | % | (13 | )% | $ | 1,385 | 51 | % | $ | 1,193 | 47 | % | (14 | )% | ||||||||||||||||||||
License and resale fees | 37 | 3 | % | 71 | 5 | % | 92 | % | 63 | 2 | % | 115 | 5 | % | 83 | % | ||||||||||||||||||||||||
Total products and services | 724 | 53 | % | 671 | 52 | % | (7 | )% | 1,448 | 54 | % | 1,308 | 51 | % | (10 | )% | ||||||||||||||||||||||||
Reimbursed expenses | 42 | 3 | % | 32 | 2 | % | (24 | )% | 60 | 2 | % | 54 | 2 | % | (10 | )% | ||||||||||||||||||||||||
$ | 766 | 56 | % | $ | 703 | 54 | % | (8 | )% | $ | 1,508 | 56 | % | $ | 1,362 | 53 | % | (10 | )% | |||||||||||||||||||||
Higher Education | ||||||||||||||||||||||||||||||||||||||||
Services | $ | 115 | 8 | % | $ | 106 | 8 | % | (8 | )% | $ | 229 | 8 | % | $ | 209 | 8 | % | (9 | )% | ||||||||||||||||||||
License and resale fees | 16 | 1 | % | 24 | 2 | % | 50 | % | 32 | 1 | % | 39 | 2 | % | 22 | % | ||||||||||||||||||||||||
Total products and services | 131 | 10 | % | 130 | 10 | % | (1 | )% | 261 | 10 | % | 248 | 10 | % | (5 | )% | ||||||||||||||||||||||||
Reimbursed expenses | 1 | — | % | 1 | — | % | — | % | 3 | 0 | % | 3 | — | % | — | % | ||||||||||||||||||||||||
$ | 132 | 10 | % | $ | 131 | 10 | % | (1 | )% | $ | 264 | 10 | % | $ | 251 | 10 | % | (5 | )% | |||||||||||||||||||||
Public Sector | ||||||||||||||||||||||||||||||||||||||||
Services | $ | 69 | 5 | % | $ | 74 | 6 | % | 7 | % | $ | 138 | 5 | % | $ | 150 | 6 | % | 9 | % | ||||||||||||||||||||
License and resale fees | 25 | 2 | % | 24 | 2 | % | (4 | )% | 46 | 2 | % | 48 | 2 | % | 4 | % | ||||||||||||||||||||||||
Total products and services | 94 | 7 | % | 98 | 8 | % | 4 | % | 184 | 7 | % | 198 | 8 | % | 8 | % | ||||||||||||||||||||||||
Reimbursed expenses | 1 | — | % | 1 | — | % | — | % | 2 | — | % | 2 | — | % | — | % | ||||||||||||||||||||||||
$ | 95 | 7 | % | $ | 99 | 8 | % | 4 | % | $ | 186 | 7 | % | $ | 200 | 8 | % | 8 | % | |||||||||||||||||||||
Software & Processing Solutions | ||||||||||||||||||||||||||||||||||||||||
Services | $ | 871 | 64 | % | $ | 780 | 60 | % | (10 | )% | $ | 1,752 | 65 | % | $ | 1,552 | 61 | % | (11 | )% | ||||||||||||||||||||
License and resale fees | 78 | 6 | % | 119 | 9 | % | 53 | % | 141 | 5 | % | 202 | 8 | % | 43 | % | ||||||||||||||||||||||||
Total products and services | 949 | 69 | % | 899 | 69 | % | (5 | )% | 1,893 | 70 | % | 1,754 | 69 | % | (7 | )% | ||||||||||||||||||||||||
Reimbursed expenses | 44 | 3 | % | 34 | 3 | % | (23 | )% | 65 | 2 | % | 59 | 2 | % | (9 | )% | ||||||||||||||||||||||||
$ | 993 | 73 | % | $ | 933 | 72 | % | (6 | )% | $ | 1,958 | 72 | % | $ | 1,813 | 71 | % | (7 | )% | |||||||||||||||||||||
Availability Services | ||||||||||||||||||||||||||||||||||||||||
Services | $ | 371 | 27 | % | $ | 361 | 28 | % | (3 | )% | $ | 737 | 27 | % | $ | 726 | 29 | % | (1 | )% | ||||||||||||||||||||
License and resale fees | 1 | — | % | — | — | % | (100 | )% | 2 | — | % | 1 | — | % | (50 | )% | ||||||||||||||||||||||||
Total products and services | 372 | 27 | % | 361 | 28 | % | (3 | )% | 739 | 27 | % | 727 | 29 | % | (2 | )% | ||||||||||||||||||||||||
Reimbursed expenses | 4 | — | % | 4 | — | % | — | % | 7 | — | % | 7 | — | % | — | % | ||||||||||||||||||||||||
$ | 376 | 27 | % | $ | 365 | 28 | % | (3 | )% | $ | 746 | 28 | % | $ | 734 | 29 | % | (2 | )% | |||||||||||||||||||||
Total Revenue | ||||||||||||||||||||||||||||||||||||||||
Services | $ | 1,242 | 91 | % | $ | 1,141 | 88 | % | (8 | )% | $ | 2,489 | 92 | % | $ | 2,278 | 89 | % | (8 | )% | ||||||||||||||||||||
License and resale fees | 79 | 6 | % | 119 | 9 | % | 51 | % | 143 | 5 | % | 203 | 8 | % | 42 | % | ||||||||||||||||||||||||
Total products and services | 1,321 | 96 | % | 1,260 | 97 | % | (5 | )% | 2,632 | 97 | % | 2,481 | 97 | % | (6 | )% | ||||||||||||||||||||||||
Reimbursed expenses | 48 | 4 | % | 38 | 3 | % | (21 | )% | 72 | 3 | % | 66 | 3 | % | (8 | )% | ||||||||||||||||||||||||
$ | 1,369 | 100 | % | $ | 1,298 | 100 | % | (5 | )% | $ | 2,704 | 100 | % | $ | 2,547 | 100 | % | (6 | )% | |||||||||||||||||||||
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Three months ended June 30, | Six months ended June 30, | |||||||||||||||||||||||
2009 | 2010 | % change | 2009 | 2010 | % change | |||||||||||||||||||
Revenue | ||||||||||||||||||||||||
Total | $ | 1,369 | $ | 1,298 | (5 | )% | $ | 2,704 | $ | 2,547 | (6 | )% | ||||||||||||
Less broker/dealer business | 177 | 64 | 350 | 118 | ||||||||||||||||||||
Total excluding broker/dealer business | $ | 1,192 | $ | 1,234 | 4 | % | $ | 2,354 | $ | 2,429 | 3 | % | ||||||||||||
Financial Systems | $ | 766 | $ | 703 | (8 | )% | $ | 1,508 | $ | 1,362 | (10 | )% | ||||||||||||
Less broker/dealer business | 177 | 64 | 350 | 118 | ||||||||||||||||||||
Financial Systems excluding broker/dealer business | $ | 589 | $ | 639 | 8 | % | $ | 1,158 | $ | 1,244 | 7 | % | ||||||||||||
Income from operations | ||||||||||||||||||||||||
Total | $ | 134 | $ | 126 | (6 | )% | $ | 234 | $ | 200 | (15 | )% | ||||||||||||
Less broker/dealer business | 13 | (8 | ) | 25 | (13 | ) | ||||||||||||||||||
Total excluding broker/dealer business | $ | 121 | $ | 134 | 11 | % | $ | 209 | $ | 213 | 2 | % | ||||||||||||
Financial Systems | $ | 138 | $ | 147 | 7 | % | $ | 257 | $ | 261 | 2 | % | ||||||||||||
Less broker/dealer business | 13 | (8 | ) | 25 | (13 | ) | ||||||||||||||||||
Financial Systems excluding broker/dealer business | $ | 125 | $ | 155 | 24 | % | $ | 232 | $ | 274 | 18 | % | ||||||||||||
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Last Twelve | ||||||||||||||||||||
Months | ||||||||||||||||||||
Three Months Ended June 30, | Six Months Ended June 30, | June 30, | ||||||||||||||||||
2009 | 2010 | 2009 | 2010 | 2010 | ||||||||||||||||
Net loss | $ | (7 | ) | $ | (21 | ) | $ | (41 | ) | $ | (75 | ) | $ | (1,152 | ) | |||||
Interest expense, net | 155 | 159 | 305 | 318 | 643 | |||||||||||||||
Provision for (benefit from) income taxes | — | 2 | (9 | ) | (29 | ) | (93 | ) | ||||||||||||
Depreciation and amortization | 202 | 194 | 395 | 392 | 828 | |||||||||||||||
Goodwill impairment charge | — | — | — | — | 1,126 | |||||||||||||||
EBITDA | 350 | 334 | 650 | 606 | 1,352 | |||||||||||||||
Purchase accounting adjustments (a) | 3 | 2 | 8 | 6 | 16 | |||||||||||||||
Non-cash charges (b) | 7 | 13 | 17 | 21 | 40 | |||||||||||||||
Restructuring and other charges (c) | 6 | 16 | 17 | 25 | 50 | |||||||||||||||
Pro forma expense savings related to acquisitions (d) | 1 | — | 2 | — | 1 | |||||||||||||||
Other (e) | (11 | ) | (11 | ) | (10 | ) | (8 | ) | 7 | |||||||||||
Adjusted EBITDA — senior secured credit facilities, senior notes due 2013 and 2015 and senior subordinated notes due 2015 | $ | 356 | $ | 354 | $ | 684 | $ | 650 | $ | 1,466 | ||||||||||
(a) | Purchase accounting adjustments include the adjustment of deferred revenue and lease reserves to fair value at the date of the Transaction and for subsequent acquisitions made by the Company and certain acquisition-related compensation expense. | |
(b) | Non-cash charges include stock-based compensation and loss on the sale of assets. | |
(c) | Restructuring and other charges include debt refinancing costs, severance and related payroll taxes, reserves to consolidate certain facilities, settlements with former owners of acquired companies and certain other expenses associated with acquisitions made by the Company. | |
(d) | Pro forma adjustments represent the full-year impact of savings resulting from post-acquisition integration activities. | |
(e) | Other includes foreign currency transaction gains or losses related to debt denominated in other than the functional currency, management fees paid to the Sponsors and franchise and similar taxes reported in operating expenses, partially offset by certain charges relating to the receivables facility. |
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Covenant | Actual | |||||||
Requirements | Ratios | |||||||
Senior secured credit facilities(1) | ||||||||
Minimum Adjusted EBITDA to consolidated interest expense ratio | 1.70x | 2.51x | ||||||
Maximum total debt to Adjusted EBITDA | 6.25x | 5.00x | ||||||
Senior notes due 2013 and 2015 and senior subordinated notes due 2015(2) | ||||||||
Minimum Adjusted EBITDA to fixed charges ratio required to incur additional debt pursuant to ratio provisions | 2.00x | 2.50x |
(1) | The senior secured credit facilities require us to maintain an Adjusted EBITDA to consolidated interest expense ratio starting at a minimum of 1.70x for the four-quarter period ended December 31, 2009 and increasing over time to 1.80x by the end of 2010 and to 2.20x by the end of 2013. Consolidated interest expense is defined in the senior secured credit facilities as consolidated cash interest expense less cash interest income further adjusted for certain non-cash or non-recurring interest expense and the elimination of interest expense and fees associated with SunGard’s receivables facility. Beginning with the four-quarter period ending December 31, 2009, we are required to maintain a consolidated total debt to Adjusted EBITDA ratio of 6.25x and decreasing over time to 5.75x by the end of 2011 and to 4.75x by the end of 2013. Consolidated total debt is defined in the senior secured credit facilities as total debt less certain indebtedness and further adjusted for cash and cash equivalents on our balance sheet in excess of $50 million. Failure to satisfy these ratio requirements would constitute a default under the senior secured credit facilities. If our lenders failed to waive any such default, our repayment obligations under the senior secured credit facilities could be accelerated, which would also constitute a default under our indentures. | |
(2) | SunGard’s ability to incur additional debt and make certain restricted payments under our indentures, subject to specified exceptions, is tied to an Adjusted EBITDA to fixed charges ratio of at least 2.0x, except that we may incur certain debt and make certain restricted payments and certain permitted investments without regard to the ratio, such as the ability to incur up to an aggregate principal amount of $5.75 billion under credit facilities (inclusive of amounts outstanding under the senior credit facilities from time to time; as of June 30, 2010, we had $4.66 billion outstanding under the term loan facilities and available commitments of $796 million under the revolving credit facility), to acquire persons engaged in a similar business that become restricted subsidiaries and to make other investments equal to 6% of our consolidated assets. Fixed charges is defined in the indentures governing the Senior Notes due 2013 and 2015 and the Senior Subordinated Notes due 2015 as consolidated interest expense less interest income, adjusted for acquisitions, and further adjusted for non-cash interest and the elimination of interest expense and fees associated with the receivables facility. |
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Number | Document | |||
10.1 | Employment Agreement between Andrew Stern and SunGard Data Systems Inc., SunGard Capital Corp. and SunGard Capital Corp. II, effective as of June 1, 2010 and forms of initial equity awards granted to Andrew Stern on June 21, 2010 included as Exhibits A and B. | |||
10.2 | Forms of June 25, 2010 Amendment to the Performance-Based Equity Award Agreements. | |||
10.3 | Forms of May 2010 Performance-Based Restricted Stock Unit Award Agreements. | |||
10.4 | Forms of May 2010 Time-Based Restricted Stock Unit Award Agreements. | |||
10.5 | Forms of May 2010 Performance-Based Class A Stock Option Award Agreements. | |||
10.6 | Forms of May 2010 Time-Based Class A Stock Option Award Agreements. | |||
12.1 | Computation of Ratio of Earnings to Fixed Charges. | |||
31.1 | Certification of Cristóbal Conde, Chief Executive Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(a) or Rule 15d-14(a) and Section 302 of the Sarbanes-Oxley Act of 2002. | |||
31.2 | Certification of Robert F. Woods, Chief Financial Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(a) or Rule 15d-14(a) and Section 302 of the Sarbanes-Oxley Act of 2002. | |||
32.1 | Certification of Cristóbal Conde, Chief Executive Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(b) or Rule 15d-14(b) and Section 906 of the Sarbanes-Oxley Act of 2002. | |||
32.2 | Certification of Robert F. Woods, Chief Financial Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(b) or Rule 15d-14(b) and Section 906 of the Sarbanes-Oxley Act of 2002. |
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SUNGARD CAPITAL CORP. SUNGARD CAPITAL CORP. II | ||||
Dated: August 5, 2010 | By: | /s/ Robert F. Woods | ||
Robert F. Woods Executive Vice President and Chief Financial Officer | ||||
(Principal Financial Officer) |
SUNGARD DATA SYSTEMS INC. | ||||
Dated: August 5, 2010 | By: | /s/ Robert F. Woods | ||
Robert F. Woods | ||||
Senior Vice President-Finance and Chief Financial Officer (Principal Financial Officer) |
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Exhibit No. | Document | |||
10.1 | Employment Agreement between Andrew Stern and SunGard Data Systems Inc., SunGard Capital Corp. and SunGard Capital Corp. II, effective as of June 1, 2010 and forms of initial equity awards granted to Andrew Stern on June 21, 2010 included as Exhibits A and B. | |||
10.2 | Forms of June 25, 2010 Amendment to the Performance-Based Equity Award Agreements. | |||
10.3 | Forms of May 2010 Performance-Based Restricted Stock Unit Award Agreements. | |||
10.4 | Forms of May 2010 Time-Based Restricted Stock Unit Award Agreements. | |||
10.5 | Forms of May 2010 Performance-Based Class A Stock Option Award Agreements. | |||
10.6 | Forms of May 2010 Time-Based Class A Stock Option Award Agreements. | |||
12.1 | Computation of Ratio of Earnings to Fixed Charges. | |||
31.1 | Certification of Cristóbal Conde, Chief Executive Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(a) or Rule 15d-14(a) and Section 302 of the Sarbanes-Oxley Act of 2002. | |||
31.2 | Certification of Robert F. Woods, Chief Financial Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(a) or Rule 15d-14(a) and Section 302 of the Sarbanes-Oxley Act of 2002. | |||
32.1 | Certification of Cristóbal Conde, Chief Executive Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(b) or Rule 15d-14(b) and Section 906 of the Sarbanes-Oxley Act of 2002. | |||
32.2 | Certification of Robert F. Woods, Chief Financial Officer of SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. required by Rule 13a-14(b) or Rule 15d-14(b) and Section 906 of the Sarbanes-Oxley Act of 2002. |
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680 East Swedesford Road
Wayne, PA 19087
Attention: General Counsel
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SUNGARD DATA SYSTEMS INC. | ||||||
Date: 6/21/10 | By: | /s/ Cristóbal Conde | ||||
Title: Chief Executive Officer | ||||||
SUNGARD CAPITAL CORP. | ||||||
Date: 6/21/10 | By: | /s/ Cristóbal Conde | ||||
Title: Chief Executive Officer | ||||||
SUNGARD CAPITAL CORP. II | ||||||
Date: 6/21/10 | By: | /s/ Cristóbal Conde | ||||
Title: Chief Executive Officer | ||||||
Date: 6/21/10 | /s/ Andrew A. Stern |
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Form of Initial Time Equity Award — RSU
Name: Andrew A. Stern | ||
Number of Stock Units: 138,376 | ||
Date of Grant: June 21, 2010 |
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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; |
(b) | “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; |
(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Section 6 of Grantee’s Employment Agreement; and |
(e) | “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. |
(a) | if the Grantee’s Employment terminates 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 |
(b) | if the Grantee’s Employment terminates as a result of termination by Employer for Cause, then all of the Stock Units will be immediately forfeited by the Grantee and terminate as of the Date of Termination. |
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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. |
(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. |
(c) | The amount credited to the Account pursuant to this Section 8 with respect to Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
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(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
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Form Of Initial Time Equity Award — Class A Option
Name: Andrew A. Stern | ||
Number of Shares: 348,479 | ||
Price per Share: $0.25 | ||
Date of Grant: June 21, 2010 |
(a) | “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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(b) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(c) | “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; and |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Section 6 of Optionee’s Employment Agreement. |
(a) | if the Optionee’s Employment terminates as a result of (i) termination of the Optionee by Employer without Cause, (ii) resignation by the Optionee or (iii) the Optionee’s Disability or death, then the Option shall immediately stop vesting; and |
(b) | if the Optionee’s Employment terminates as a result of termination by Employer for Cause, then the entire Option will be immediately forfeited by the Optionee and terminate as of the Date of Termination. |
(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, in case of an exercise on the Final Exercise Date, 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) | 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 90th 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. |
(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. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
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Converted to | ||||||||||||||
%FD AS | ||||||||||||||
T4Q’sΔ | Cash | Equity upon | ||||||||||||
Financial Performance Measure | ($MM) | Hurdle | ($MM) | Spin-off | ||||||||||
1. EBITA improvement | 0 | First | $ | 0 | 0.15 | % | ||||||||
100 | Second | $ | 5 | 0.30 | % | |||||||||
200 | Third | $ | 10 | 0.45 | % | |||||||||
2. EBITDA minus Capex improvement | 0 | First | $ | 0 | 0.15 | % | ||||||||
100 | Second | $ | 5 | 0.30 | % | |||||||||
200 | Third | $ | 10 | 0.45 | % | |||||||||
3. Revenue improvement | 0 | First | $ | 0 | 0.15 | % | ||||||||
250 | Second | $ | 5 | 0.30 | % | |||||||||
500 | Third | $ | 10 | 0.45 | % | |||||||||
Total at Max Vesting | $ | 30 | 1.35 | % |
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Form of Follow On Time Award — RSU
Name: Andrew A. Stern | ||
Number of Stock Units: 69,188 | ||
Date of Grant: |
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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; |
(b) | “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; |
(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Section 6 of Grantee’s Employment Agreement; and |
(e) | “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. |
(a) | if the Grantee’s Employment terminates 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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(b) | if the Grantee’s Employment terminates as a result of termination by Employer for Cause, then all of the Stock Units will be immediately forfeited by the Grantee and terminate as of the Date of Termination. |
(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. |
(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 Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
By: | ||||||
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Vesting Schedule
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Form of Follow On Time Award — Class A Option
Name: Andrew A. Stern | ||
Number of Shares: 174,240 | ||
Price per Share: | ||
Date of Grant: |
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(a) | “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; |
(b) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(c) | “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; and |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Section 6 of Optionee’s Employment Agreement. |
(a) | if the Optionee’s Employment terminates as a result of (i) termination of the Optionee by Employer without Cause, (ii) resignation by the Optionee or (iii) the Optionee’s Disability or death, then the Option shall immediately stop vesting; and |
(b) | if the Optionee’s Employment terminates as a result of termination by Employer for Cause, then the entire Option will be immediately forfeited by the Optionee and terminate as of the Date of Termination. |
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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, in case of an exercise on the Final Exercise Date, 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. |
(b) | 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 90th 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. |
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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. |
(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. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
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[Note: | The applicable time period will depend on whether the termination is part of a reduction in force (45 days) or not (21 days). In addition, if the termination is in connection with a reduction in force, certain disclosures will need to be made to Executive to comply with the requirements of the ADEA if Executive is at least age 40.] |
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[Executive] | ||||||
SUNGARD DATA SYSTEMS INC. | ||||||
By: | Witness: | |||||
Title: |
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Management Non-Qualified Performance-Based Option Agreement
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1. | Schedule A to the Agreement is hereby amended by adding the following new paragraphs to the end: |
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• | For purposes of this Amendment, for calendar yearsafter 2010: |
2. | This Amendment shall apply to the portion of the Option to be earned with respect to calendar years in the Performance Periodafter 2010. | |
3. | In all respects not amended, the Agreement is hereby ratified and confirmed. |
SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
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Optionee | Name of Optionee |
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Management Performance-Based Restricted Stock Unit Agreement
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4. | Schedule A to the Agreement is hereby amended by adding the following new paragraphs to the end: |
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• | For purposes of this Amendment, for calendar yearsafter 2010: |
5. | This Amendment shall apply to the portion of the Stock Units to be earned with respect to calendar years in the Performance Periodafter 2010. | |
6. | In all respects not amended, the Agreement is hereby ratified and confirmed. |
SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
By: | ||||||
Grantee | Name of Grantee |
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Management Non-Qualified Performance-Based Class A Option Agreement
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7. | Schedule A to the Agreement is hereby amended by adding the following new paragraphs to the end: |
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• | For purposes of this Amendment, for calendar yearsafter 2010: |
8. | This Amendment shall apply to the portion of the Option to be earned with respect to calendar years in the Performance Periodafter 2010. | |
9. | In all respects not amended, the Agreement is hereby ratified and confirmed. |
SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
By: | ||||||
Optionee | Name of Optionee |
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Name: | ||
Number of Stock Units: | ||
Date of Grant: |
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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; | ||
(b) | “CEO” means the Chief Executive Officer of the Company. |
(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; |
(d) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(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; |
(f) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; | ||
(g) | “Retirement” means termination of employment by Grantee after age 62; |
(h) | “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; |
(i) | “Vest on a Pro Rata Basis” means that the vesting of the Grantee’s Stock Units shall continue through the end of the Year of Termination (but not thereafter), provided that only a portion of the Stock Units subject to this Restricted Stock Unit Agreement that otherwise would have vested at the end of such year shall vest, such portion being determined by multiplying (i) the number of Stock Units 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 the Grantee was employed by Employer during the Year of Termination divided by (B) 365 (rounded to the nearest whole number of Stock Units); |
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(j) | “Year of Termination” means the fiscal year for the applicable Performance Period during which the Grantee’s Date of Termination occurs. |
(a) | if the Grantee’s Employment terminates as a result of (i) termination of the Grantee by Employer without Cause, (ii) the Grantee’s Disability or death, or (iii) with respect to Stock Units earned for a calendar year after 2010, the Grantee’s Retirement,then the Stock Units for the year of termination shall Vest on a Pro Rata Basis, and any unvested portion of the Stock Units that was earned for the 2010 calendar year shall become fully vested as of the Date of Termination; |
(b) | with respect to the portion of the Stock Units that is earned for the 2010 calendar year, if the Grantee’s Employment terminates as a result of the Grantee’s resignation or Retirement, then the Stock Units shall be deemed to have stopped vesting as of the Date of Termination of such Grantee, and no portion of the Stock Units shall be earned for the calendar year in which the Date of Termination occurs; |
(c) | with respect to the portion of the Stock Units that is earned for calendar years after 2010, if the Grantee’s Employment terminates as a result of the Grantee’s resignation, then the Stock Units shall be deemed to have stopped vesting as of the beginning of the year containing the Date of Termination of such Grantee; |
(d) | 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; and |
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(e) | 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 Stock Units, which shall be treated in a manner they jointly consider equitable under the circumstances; provided that in the event of a Change of Control after the 2010 calendar year, any portion of the Stock Units that were earned with respect to the 2010 calendar year and that have not yet vested shall vest in full upon the Change of Control. |
(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. |
(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 Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
By: | ||||||
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Vesting Schedule
(1) | With respect to the2010 calendar year, the Stock Units shall be earned to the extent that the Base Case for such calendar year is achieved during such period as follows, and the portion of the Stock Units that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (2) below: |
(a) | If Actual Internal EBITA for such calendar year is less than or equal to 95% of the Base Case for that year, none of the Stock Units will earned at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Stock Units that will be earned for the calendar year will be determined by interpolation at the linear rate of 1/78.32 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Share); |
(c) | If Actual Internal EBITA for such calendar year is above 100% but not greater than 106.25% of the Base Case for that year, the Stock Units that will be earned for the calendar year will be the sum of (i) the number of Stock Units calculated in accordance with paragraph (b) above and (ii) the number of Stock Units determined by interpolation at the linear rate of 1/249.51 of the Stock Units per one percentage point of Actual Internal EBITA in excess of 100% (rounded to the nearest .0001 of a Stock Unit); and |
(d) | If Actual Internal EBITA for such calendar year is greater than 106.25% of the Base Case for that year, no further Stock Units shall be earned other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below), at which point the Stock Units shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number Stock Units that will be earned for the calendar year will be the sum of (x) the number of Stock Units calculated in accordance with paragraph (c) above and (y) an amount determined by interpolation at the linear rate of 1/56.25 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Stock Units between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, 1/5 of the Stock Units shall be earned (rounded to the nearest .0001 of a Stock Unit) at the end of that year. |
(2) | With respect to the2010 calendar year, the Stock Units shall vest and be exercisable with respect to 25% of the total number of Stock Units earned under paragraph (1) above at the end of such calendar year (“Initial Vesting Date”); and the remaining 75% of the total number of Stock Units earned for such calendar year shall vest and be exercisable in equal monthly installments over the 36 months following the Initial Vesting Date starting with the first monthly anniversary of the Initial Vesting Date. All vesting shall be conditioned on continued service with the Company through the applicable vesting date. |
(3) | With respect to each of thecalendar years in the Performance Period after 2010, the Stock Units shall be exercisable to the extent that the Base Case is achieved during such period as follows, and the portion of the Stock Units that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (4) below: |
(a) | If Actual Internal EBITA for such calendar year is less than or equal to 95% of the Base Case for that year, none of the Stock Units will be earned at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Stock Units that vest and become exercisable at the end of that year will be determined by interpolation at the linear rate of 1/56.25 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest ..0001 of a Stock Unit); and |
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(c) | If Actual Internal EBITA for such calendar year is greater than 100% of the Base Case for that year, then no further Stock Units shall be earned other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below) for that year, at which point the Stock Units shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Stock Units that will be earned for the calendar year will be the sum of (x) the number of Stock Units calculated in accordance with paragraph (b) above and (y) an amount determined by interpolation at the linear rate of 1/56.25 of the Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Stock Unit) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, 1/5 of the Stock Units shall be earned (rounded to the nearest .0001 of a Stock Unit) at the end of that year. |
(4) | With respect to each of thecalendar years in the Performance Period after 2010, the Stock Units shall vest as of the end of the applicable calendar year, to the extent earned, and subject to the other terms of the Agreement. |
Original Base Case | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||
Actual Internal EBITA (in millions) |
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Restrictive Covenants
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Name: Template | ||
Number of Stock Units: Template | ||
Date of Grant: |
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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; | ||
(b) | “CEO” means the Chief Executive Officer of the Company. |
(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; |
(d) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(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; |
(f) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; |
(g) | “Tax” or “Taxes” means any income tax, social insurance, payroll tax, contributions, payment on account obligations or other payments; |
(h) | “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; |
(i) | “Vest on a Pro Rata Basis” means that the vesting of the Grantee’s Stock Units shall continue through the end of the Year of Termination (but not thereafter), provided that only a portion of the Stock Units that otherwise would have vested at the end of such year shall vest, such portion being determined by multiplying (i) the number of Stock Units subject to this Restricted Stock Unit Agreement 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 the Grantee was employed by Employer during the Year of Termination divided by (B) 365 (rounded to the nearest whole number of Stock Units); |
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(j) | “Year of Termination” means the fiscal year for the applicable Performance Period during which the Grantee’s Date of Termination occurs. |
(a) | if the Grantee’s Employment terminates as a result of (i) termination of the Grantee by Employer without Cause or (ii) the Grantee’s Disability or death, then the Stock Units shall Vest on a Pro Rata Basis, and any unvested Stock Units that were earned for the 2009 or 2010 calendar year shall become fully vested as of the Date of Termination; |
(b) | if the Grantee’s Employment terminates as a result of resignation by the Grantee, then the Stock Units shall be deemed to have stopped vesting as of the beginning of the year containing the Date of Termination of the Grantee’s Employment; provided, however, Stock Units that were earned in 2009 or 2010 shall be deemed to have stopped vesting as of the Date of Termination of the Grantee’s Employment and no Stock Units shall be earned for the calendar year in which the Date of Termination occurs; |
(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; and |
(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 Stock Units, which shall be treated in a manner they jointly consider equitable under the circumstances; provided that in the event of a Change of Control after the 2009 or 2010 calendar year, any Stock Units that were earned with respect to the 2009 or 2010 calendar year and that have not yet vested shall vest in full upon the Change of Control. |
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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. |
(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. |
(c) | The amount credited to the Account pursuant to this Section 8 with respect to Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
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(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
By: | ||||||
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Vesting Schedule
(1) | With respect to the2010 calendar year, the Stock Units shall be earned to the extent that the Base Case for such calendar year is achieved during such period as follows, and the portion of the Stock Units that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (2) below: |
(a) | If Actual Internal EBITA for such calendar year is less than or equal to 95% of the Base Case for that year, none of the Stock Units will earned at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Stock Units that will be earned for the calendar year will be determined by interpolation at the linear rate of 1/78.32 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Share); |
(c) | If Actual Internal EBITA for such calendar year is above 100% but not greater than 106.25% of the Base Case for that year, the Stock Units that will be earned for the calendar year will be the sum of (i) the number of Stock Units calculated in accordance with paragraph (b) above and (ii) the number of Stock Units determined by interpolation at the linear rate of 1/249.51 of the Stock Units per one percentage point of Actual Internal EBITA in excess of 100% (rounded to the nearest .0001 of a Stock Unit); and |
(d) | If Actual Internal EBITA for such calendar year is greater than 106.25% of the Base Case for that year, no further Stock Units shall be earned other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below), at which point the Stock Units shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number Stock Units that will be earned for the calendar year will be the sum of (x) the number of Stock Units calculated in accordance with paragraph (c) above and (y) an amount determined by interpolation at the linear rate of 1/56.25 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Stock Units between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, 1/5 of the Stock Units shall be earned (rounded to the nearest .0001 of a Stock Unit) at the end of that year. |
(2) | With respect to the2010 calendar year, the Stock Units shall vest and be exercisable with respect to 25% of the total number of Stock Units earned under paragraph (1) above at the end of such calendar year (“Initial Vesting Date”); and the remaining 75% of the total number of Stock Units earned for such calendar year shall vest and be exercisable in equal monthly installments over the 36 months following the Initial Vesting Date starting with the first monthly anniversary of the Initial Vesting Date. All vesting shall be conditioned on continued service with the Company through the applicable vesting date. |
(3) | With respect to each of thecalendar years in the Performance Period after 2010, the Stock Units shall be exercisable to the extent that the Base Case is achieved during such period as follows, and the portion of the Stock Units that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (4) below: |
(a) | If Actual Internal EBITA for such calendar year is less than or equal to 95% of the Base Case for that year, none of the Stock Units will be earned at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Stock Units that vest and become exercisable at the end of that year will be determined by interpolation at the linear rate of 1/56.25 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest ..0001 of a Stock Unit); and |
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(c) | If Actual Internal EBITA for such calendar year is greater than 100% of the Base Case for that year, then no further Stock Units shall be earned other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below) for that year, at which point the Stock Units shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Stock Units that will be earned for the calendar year will be the sum of (x) the number of Stock Units calculated in accordance with paragraph (b) above and (y) an amount determined by interpolation at the linear rate of 1/56.25 of the Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Stock Unit) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, 1/5 of the Stock Units shall be earned (rounded to the nearest .0001 of a Stock Unit) at the end of that year. |
(4) | With respect to each of thecalendar years in the Performance Period after 2010, the Stock Units shall vest as of the end of the applicable calendar year, to the extent earned, and subject to the other terms of the Agreement. |
Original Base Case | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||
Actual Internal EBITA (in millions) |
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Restrictive Covenants
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Name: | ||
Number of Stock Units: | ||
Date of Grant: |
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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; | ||
(b) | “CEO” means the Chief Executive Officer of the Company. |
(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; |
(d) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(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; |
(f) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; |
(h) | “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; |
(i) | “Vest on a Pro Rata Basis” means that the vesting of the Grantee’s Stock Units shall continue through the end of the Year of Termination (but not thereafter), provided that only a portion of the Stock Units subject to this Restricted Stock Unit Agreement that otherwise would have vested at the end of such year shall vest, such portion being determined by multiplying (i) the number of Stock Units 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 the Grantee was employed by Employer during the Year of Termination divided by (B) 365 (rounded to the nearest whole number of Stock Units); |
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(j) | Vest on a Return-on-Equity Basis” means that Grantee’s Stock Units shall be subject to accelerated vesting at the time of a Change of Control as follows: |
(i) | If the Change of Control occurs on or before December 31, 2013 and results in the Investors receiving an amount constituting at least 300% of the Investors’ initial equity investment in the Company and any subsequent equity investments, Stock Units shall vest as follows: (A) if the Investor internal rate of return (“IRR”) as of the Change of Control date is 16% or higher, all remaining Stock Units shall become fully vested and exercisable on the one-year anniversary of the Change of Control; (B) if the Investor IRR as of the Change of Control date is between 14% and 16%, the number of Stock Units determined by interpolation (e.g., 50% acceleration at 15% IRR) shall become fully vested and exercisable on the one-year anniversary of the Change of Control; and (C) if the Investor IRR as of the Change of Control date is less than 14%, there will be no acceleration of vesting. Vesting on the one-year anniversary of the Change of Control is contingent on continued employment through the one-year anniversary date, except as otherwise provided in Section 4(a). |
(ii) | If a Change of Control occurs and the requirements of subsection (i) are not met, there will be no acceleration of vesting. |
(iii) | In determining the amount that has been received by the Investors, the gross value of all cash (including prior distributions the Investors or their Affiliates have received with respect to the Shares) and/or securities (with the fair value of such securities to be determined by the Board, which shall be entitled to take into account any restrictions on transferability, liquidity or saleability of such securities) received by the Investors shall be taken into account, minus the amount of commissions, fees and expenses payable by the Investors to the investment bankers and professional advisors in connection with the Change of Control. Management and transaction fees specified in the Management Agreement entered into as of August 11, 2005 between the Company and certain affiliates of the Investors, as amended from time to time, shall be excluded, provided that any increases in such fees from the fees in effect as of August 11, 2005 must be customary (on a percentage of equity basis or in the case of transaction fees as a percentage of transaction size) compared to fees charged by private equity sponsors to their portfolio companies. In evaluating the amount of the transaction consideration, the Board may take into consideration amounts paid into escrow and contingent payments in connection with any transaction. |
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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. |
(a) | if the Grantee’s Employment terminates as a result of (i) termination of the Grantee by Employer without Cause, (ii) the Grantee’s Disability or death, or (iii) with respect to Stock Units earned for a calendar year after 2010, the Grantee’s Retirement,then (A) the Stock Units for the year of termination shall Vest on a Pro Rata Basis, (B) any unvested portion of the Stock Units that was earned for the 2010 calendar year shall become fully vested as of the Date of Termination, and (C) if a Change of Control has occurred, any amount that is scheduled to vest on the one-year anniversary of the Change of Control pursuant to Section 3(j)(i) above shall become fully vested as of the Date of Termination;; |
(b) | with respect to the portion of the Stock Units that is earned for the 2010 calendar year, if the Grantee’s Employment terminates as a result of the Grantee’s resignation or Retirement, then the Stock Units shall be deemed to have stopped vesting as of the Date of Termination of such Grantee, and no portion of the Stock Units shall be earned for the calendar year in which the Date of Termination occurs; |
(c) | with respect to the portion of the Stock Units that is earned for calendar years after 2010, if the Grantee’s Employment terminates as a result of the Grantee’s resignation, then the Stock Units shall be deemed to have stopped vesting as of the beginning of the year containing the Date of Termination of such Grantee; |
(d) | 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; |
(e) | upon a Change of Control through December 31, 2013, the Stock Units shall Vest on a Return-on-Equity Basis; provided that, upon such a Change of Control following which Stock continues to be held by any of the Investors, if the Change of Control would not result in full acceleration of vesting pursuant to this Section 4(d) without giving effect to this proviso, the Administrator shall, as it considers appropriate in its sole discretion, either (i) cause the Stock Units to Vest on a Return-on-Equity Basis treating the Fair Market Value of any retained Stock as an amount received by the Investors in connection with the Change of Control, or (ii) permit the Stock Units to Vest on a Return-on-Equity Basis in connection with any disposition by the Investors of a material portion of their remaining Stock during through December 31, 2013; and |
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(f) | notwithstanding the foregoing, in the event of a Change of Control after the 2010 calendar year, any portion of the Stock Units that was earned with respect to the 2010 calendar year based on Schedule A and that has not yet vested shall vest in full upon the Change of Control. |
(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. |
(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 Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
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Vesting Schedule
(1) | With respect to the2010 calendar year, the Stock Units shall be earned to the extent that the Base Case for such calendar year is achieved during such period as follows, and the portion of the Stock Units that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (2) below: |
(a) | If Actual Internal EBITA for such calendar year is less than or equal to 95% of the Base Case for that year, none of the Stock Units will earned at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Stock Units that will be earned for the calendar year will be determined by interpolation at the linear rate of 1/78.32 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Share); |
(c) | If Actual Internal EBITA for such calendar year is above 100% but not greater than 106.25% of the Base Case for that year, the Stock Units that will be earned for the calendar year will be the sum of (i) the number of Stock Units calculated in accordance with paragraph (b) above and (ii) the number of Stock Units determined by interpolation at the linear rate of 1/249.51 of the Stock Units per one percentage point of Actual Internal EBITA in excess of 100% (rounded to the nearest .0001 of a Stock Unit); and |
(d) | If Actual Internal EBITA for such calendar year is greater than 106.25% of the Base Case for that year, no further Stock Units shall be earned other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below), at which point the Stock Units shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number Stock Units that will be earned for the calendar year will be the sum of (x) the number of Stock Units calculated in accordance with paragraph (c) above and (y) an amount determined by interpolation at the linear rate of 1/56.25 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Stock Units between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, 1/5 of the Stock Units shall be earned (rounded to the nearest .0001 of a Stock Unit) at the end of that year. |
(2) | With respect to the2010 calendar year, the Stock Units shall vest and be exercisable with respect to 25% of the total number of Stock Units earned under paragraph (1) above at the end of such calendar year (“Initial Vesting Date”); and the remaining 75% of the total number of Stock Units earned for such calendar year shall vest and be exercisable in equal monthly installments over the 36 months following the Initial Vesting Date starting with the first monthly anniversary of the Initial Vesting Date. All vesting shall be conditioned on continued service with the Company through the applicable vesting date. |
(3) | With respect to each of thecalendar years in the Performance Period after 2010, the Stock Units shall be exercisable to the extent that the Base Case is achieved during such period as follows, and the portion of the Stock Units that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (4) below: |
(a) | If Actual Internal EBITA for such calendar year is less than or equal to 95% of the Base Case for that year, none of the Stock Units will be earned at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Stock Units that vest and become exercisable at the end of that year will be determined by interpolation at the linear rate of 1/56.25 of the Stock Units per one percentage point of Actual Internal EBITA (rounded to the nearest ..0001 of a Stock Unit); and |
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(c) | If Actual Internal EBITA for such calendar year is greater than 100% of the Base Case for that year, then no further Stock Units shall be earned other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below) for that year, at which point the Stock Units shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Stock Units that will be earned for the calendar year will be the sum of (x) the number of Stock Units calculated in accordance with paragraph (b) above and (y) an amount determined by interpolation at the linear rate of 1/56.25 of the Units per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Stock Unit) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, 1/5 of the Stock Units shall be earned (rounded to the nearest .0001 of a Stock Unit) at the end of that year. |
(4) | With respect to each of thecalendar years in the Performance Period after 2010, the Stock Units shall vest as of the end of the applicable calendar year, to the extent earned, and subject to the other terms of the Agreement. |
Original Base Case | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||
Actual Internal EBITA (in millions) |
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Restrictive Covenants
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Name: | ||
Number of Stock Units: | ||
Date of Grant: |
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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; |
(b) | “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; |
(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; and |
(e) | “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. |
(a) | 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; |
(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 |
(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. |
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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. |
(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. |
(c) | The amount credited to the Account pursuant to this Section 8 with respect to Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
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(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
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Vesting Schedule
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Name: Template | ||
Number of Stock Units: Template | ||
Date of Grant: |
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”).
SEEK THE ADVICE OF YOUR OWN LEGAL AND FINANCIAL ADVISORS WITH RESPECT TO YOUR
AWARD AND ITS TAX CONSEQUENCES.
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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; |
(b) | “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; |
(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Grantee has entered into an Employment relationship; |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; |
(e) | “Tax” or “Taxes” means any income tax, social insurance, payroll tax, contributions, payment on account obligations or other payments; |
(f) | “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 |
(a) | 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; |
(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. |
(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. |
(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 Stock Units is referred to as the “Bonus Value.” The Bonus Value shall vest on the same terms as the Stock Units to which it relates, as set forth in this Agreement, and the vested Bonus Value shall be paid to the Grantee at the same time as the vested Stock Units are paid pursuant to Section 5 herein, consistent with Section 409A of the Code. |
(d) | 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. |
(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. |
(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. |
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SunGard Capital Corp. and | SUNGARD CAPITAL CORP. | |||||
SunGard Capital Corp. II | SUNGARD CAPITAL CORP. II | |||||
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Vesting Schedule
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Restrictive Covenants
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Name: | ||
Number of Shares: | ||
Price per Share: | ||
Date of Grant: |
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”)
ADVISORS WITH RESPECT TO YOUR AWARD AND ITS TAX CONSEQUENCES.
(a) | “CEO” means the Chief Executive Officer of the Company; |
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(b) | “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; |
(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(d) | “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; |
(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; |
(f) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; |
(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) | “Year of Termination” means the fiscal year for the applicable Performance Period during which Optionee’s Date of Termination occurs. |
(a) | if the Optionee’s Employment terminates as a result of (i) termination of the Optionee by Employer without Cause, (ii) the Optionee’s Disability or death, or (iii) with respect to Shares earned for a calendar year after 2010, the Optionee’s Retirement,then the Option for the year of termination shall Vest on a Pro Rata Basis, and any unvested portion of the Option that was earned for the 2010 calendar year shall become fully vested as of the Date of Termination; |
(b) | with respect to the portion of the Option that is earned for the 2010 calendar year, if the Optionee’s Employment terminates as a result of the Optionee’s resignation or Retirement, then the Option shall be deemed to have stopped vesting as of the Date of Termination of such Optionee, and no portion of the Option shall be earned for the calendar year in which the Date of Termination occurs; |
(c) | with respect to the portion of the Option that is earned for calendar years after 2010, if the Optionee’s Employment terminates as a result of the Optionee’s resignation, 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; |
(d) | 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 |
(e) | 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; provided that in the event of a Change of Control after the 2010 calendar year, any portion of the Option that was earned with respect to the 2010 calendar year and that has not yet vested shall vest in full upon the Change of Control. |
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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, in case of an exercise on the Final Exercise Date, 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. |
(b) | 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 90th 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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(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. |
(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. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
By: | ||||||
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Vesting Schedule
(1) | With respect to the2010 calendar year, the Option shall be earned to the extent that the Base Case for such calendar year is achieved during such period as follows, and the portion of the Option that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (2) below: |
(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 be earned for any Shares at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be determined by interpolation at the linear rate of 1/78.32 of the Shares per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Share); |
(c) | If Actual Internal EBITA for such calendar year is above 100% but not greater than 106.25% of the Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (i) the number of Options calculated in accordance with paragraph (b) above and (ii) the number of Options determined by interpolation at the linear rate of 1/249.51 of the Shares per one percentage point of Actual Internal EBITA in excess of 100% (rounded to the nearest .0001 of a Share); and |
(d) | If Actual Internal EBITA for such calendar year is greater than 106.25% of the Base Case for that year, the Option shall not be earned for any further Shares than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below), at which point the Option shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (x) the number of Options calculated in accordance with paragraph (c) above and (y) an amount 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) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, the Option shall be earned for 1/5 of the Shares (rounded to the nearest .0001 of a Share) at the end of that year. |
(2) | With respect to the 2010 calendar year, the Option shall vest and be exercisable with respect to 25% of the total number of Shares earned under paragraph (1) above at the end of such calendar year (“Initial Vesting Date”); and the remaining 75% of the total number of Shares earned for such calendar year shall vest and be exercisable in equal monthly installments over the 36 months following the Initial Vesting Date starting with the first monthly anniversary of the Initial Vesting Date. All vesting shall be conditioned on continued service with the Company through the applicable vesting date. |
(3) | With respect to each of thecalendar years in the Performance Period after 2010, the Option shall be exercisable to the extent that the Base Case is achieved during such period as follows, and the portion of the Option that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (4) below: |
(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 be earned for any Shares at the end of that year; |
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(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Shares underlying the Option that will be earned at the end of that year 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); and |
(c) | If Actual Internal EBITA for such calendar year is greater than 100% of the Base Case for that year, the Option shall not be earned for any Shares other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below) for that year, at which point the Option shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (x) the number of Shares calculated in accordance with paragraph (b) above and (y) an amount 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) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, the Option shall be earned for 1/5 of the Shares (rounded to the nearest .0001 of a Share) at the end of that year. |
(4) | With respect to each of thecalendar years in the Performance Period after 2010, all Options shall vest and be exercisable as of the end of the applicable calendar year, to the extent earned, and subject to the other terms of the Agreement. |
Original Base Case | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||
Actual Internal EBITA (in millions) |
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Restrictive Covenants
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Name: | ||
Number of Shares: | ||
Price per Share: | ||
Date of Grant: |
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”).
AND FINANCIAL ADVISORS WITH RESPECT TO YOUR AWARD AND ITS TAX CONSEQUENCES.
(a) | “CEO” means the Chief Executive Officer of the Company; |
(b) | “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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(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(d) | “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; |
(e) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; |
(f) | “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); |
(g) | “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 |
(h) | “Year of Termination” means the fiscal year for the applicable Performance Period during which Optionee’s Date of Termination occurs. |
(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, and any unvested Options that were earned for the 2009 or 2010 calendar year shall become fully vested as of the Date of Termination; |
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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; provided, however, Options that were earned in 2009 or 2010 shall be deemed to have stopped vesting as of the Date of Termination of the Optionee’s Employment and no Options shall be earned for the calendar year in which the Date of Termination occurs; |
(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 |
(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; provided that in the event of a Change of Control after the 2009 or 2010 calendar year, any portion of the Option that was earned with respect to the 2009 or 2010 calendar year and that has not yet vested shall vest in full upon the Change of Control. |
(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, in case of an exercise on the Final Exercise Date, 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. 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 issued to the Optionee. 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) | 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 90th 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). |
(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, and (iii) the Company has no liability for any attendant market risk caused by any such delay, withholding, or escrow. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
By: | ||||||
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(1) | With respect to the2010 calendar year, the Option shall be earned to the extent that the Base Case for such calendar year is achieved during such period as follows, and the portion of the Option that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (2) below: |
(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 be earned for any Shares at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be determined by interpolation at the linear rate of 1/78.32 of the Shares per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Share); |
(c) | If Actual Internal EBITA for such calendar year is above 100% but not greater than 106.25% of the Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (i) the number of Options calculated in accordance with paragraph (b) above and (ii) the number of Options determined by interpolation at the linear rate of 1/249.51 of the Shares per one percentage point of Actual Internal EBITA in excess of 100% (rounded to the nearest .0001 of a Share); and |
(d) | If Actual Internal EBITA for such calendar year is greater than 106.25% of the Base Case for that year, the Option shall not be earned for any further Shares than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below), at which point the Option shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (x) the number of Options calculated in accordance with paragraph (c) above and (y) an amount 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) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, the Option shall be earned for 1/5 of the Shares (rounded to the nearest .0001 of a Share) at the end of that year. |
(2) | With respect to the 2010 calendar year, the Option shall vest and be exercisable with respect to 25% of the total number of Shares earned under paragraph (1) above at the end of such calendar year (“Initial Vesting Date”); and the remaining 75% of the total number of Shares earned for such calendar year shall vest and be exercisable in equal monthly installments over the 36 months following the Initial Vesting Date starting with the first monthly anniversary of the Initial Vesting Date. All vesting shall be conditioned on continued service with the Company through the applicable vesting date. |
(3) | With respect to each of thecalendar years in the Performance Period after 2010, the Option shall be exercisable to the extent that the Base Case is achieved during such period as follows, and the portion of the Option that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (4) below: |
(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 be earned for any Shares at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Shares underlying the Option that will be earned at the end of that year 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); and |
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(c) | If Actual Internal EBITA for such calendar year is greater than 100% of the Base Case for that year, the Option shall not be earned for any Shares other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below) for that year, at which point the Option shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (x) the number of Shares calculated in accordance with paragraph (b) above and (y) an amount 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) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, the Option shall be earned for 1/5 of the Shares (rounded to the nearest .0001 of a Share) at the end of that year. |
(4) | With respect to each of thecalendar years in the Performance Period after 2010, all Options shall vest and be exercisable as of the end of the applicable calendar year, to the extent earned, and subject to the other terms of the Agreement. |
Original Base Case | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||
Actual Internal EBITA (in millions) |
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Restrictive Covenants
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Name: | ||
Number of Shares: | ||
Price per Share: | ||
Date of Grant: |
(b) | “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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(c) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(d) | “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; |
(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; |
(f) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; |
(g) | “Retirement” means termination of employment by Optionee after age 62; |
(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) | “Vest on a Return-on-Equity Basis” means that Optionee’s Option shall be subject to accelerated vesting at the time of a Change of Control as follows: |
(i) | If the Change of Control occurs on or before December 31, 2013 and results in the Investors receiving an amount constituting at least 300% of the Investors’ initial equity investment in Company and any subsequent equity investments, Shares shall vest as follows: (A) if the Investor internal rate of return (“IRR”) as of the Change of Control date is 16% or higher, all remaining Shares shall become fully vested and exercisable on the one-year anniversary of the Change of Control; (B) if the Investor IRR as of the Change of Control date is between 14% and 16%, the number of Shares determined by interpolation (e.g., 50% acceleration at 15% IRR) shall become fully vested and exercisable on the one-year anniversary of the Change of Control; and (C) if the Investor IRR as of the Change of Control date is less than 14%, there will be no acceleration of vesting. Vesting on the one-year anniversary of the Change of Control is contingent on continued employment through the one-year anniversary date, except as otherwise provided in Section 3(a). |
(ii) | If a Change of Control occurs and the requirements of subsection (i) are not met, there will be no acceleration of vesting. |
(iii) | In determining the amount that has been received by the Investors, the gross value of all cash (including prior distributions the Investors or their Affiliates have received with respect to the Shares) and/or securities (with the fair value of such securities to be determined by the Board, which shall be entitled to take into account any restrictions on transferability, liquidity or saleability of such securities) received by the Investors shall be taken into account, minus the amount of commissions, fees and expenses payable by the Investors to the investment bankers and professional advisors in connection with the Change of Control. Management and transaction fees specified in the Management Agreement shall be excluded, provided that any increases in such fees from the fees in effect as of the date of the Optionee’s Employment Agreement must be customary (on a percentage of equity basis or in the case of transaction fees as a percentage of transaction size) compared to fees charged by private equity sponsors to their portfolio companies. In evaluating the amount of the transaction consideration, the Board may take into consideration amounts paid into escrow and contingent payments in connection with any transaction. |
(j) | “Year of Termination” means the fiscal year for the applicable Performance Period during which Optionee’s Date of Termination occurs. |
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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 Disability or death, or (iii) with respect to Shares earned for a calendar year after 2010, the Optionee’s Retirement,then (A) the Option for the year of termination shall Vest on a Pro Rata Basis, (B) any unvested portion of the Option that was earned for the 2010 calendar year shall become fully vested as of the Date of Termination, and (C) if a Change of Control has occurred, any amount that is scheduled to vest on the one-year anniversary of the Change of Control pursuant to clause (i) of Section 2(i) above shall become fully vested as of the Date of Termination; |
(b) | with respect to the portion of the Option that is earned for the 2010 calendar year, if the Optionee’s Employment terminates as a result of the Optionee’s resignation or Retirement, then the Option shall be deemed to have stopped vesting as of the Date of Termination of such Optionee, and no portion of the Option shall be earned for the calendar year in which the Date of Termination occurs; |
(c) | with respect to the portion of the Option that is earned for calendar years after 2010, if the Optionee’s Employment terminates as a result of the Optionee’s resignation, 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; |
(d) | 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 |
(e) | upon a Change of Control through December 31, 2013, the Option shall Vest on a Return-on-Equity Basis; provided that, upon such a Change of Control following which Stock continues to be held by any of the Principal Investors, if the Change of Control would not result in full acceleration of vesting pursuant to this Section 3(e) without giving effect to this proviso, the Administrator shall, as it considers appropriate in its sole discretion, either (i) cause the Option to Vest on a Return-on-Equity Basis treating the Fair Market Value of any retained Stock as an amount received by the Investors in connection with the Change of Control, or (ii) permit the Option to Vest on a Return-on-Equity Basis in connection with any disposition by the Principal Investors of a material portion of their remaining Stock through December 31, 2013; |
(f) | notwithstanding the foregoing, in the event of a Change of Control after the 2010 calendar year, any portion of the Option that was earned with respect to the 2010 calendar year based on Schedule A and that has not yet vested shall vest in full upon the Change of Control. |
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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, in case of an exercise on the Final Exercise Date, 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. |
(b) | 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 90th 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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(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. |
(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. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
By: | ||||||
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Vesting Schedule
(1) | With respect to the2010 calendar year, the Option shall be earned to the extent that the Base Case for such calendar year is achieved during such period as follows, and the portion of the Option that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (2) below: |
(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 be earned for any Shares at the end of that year; |
(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be determined by interpolation at the linear rate of 1/78.32 of the Shares per one percentage point of Actual Internal EBITA (rounded to the nearest .0001 of a Share); |
(c) | If Actual Internal EBITA for such calendar year is above 100% but not greater than 106.25% of the Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (i) the number of Options calculated in accordance with paragraph (b) above and (ii) the number of Options determined by interpolation at the linear rate of 1/249.51 of the Shares per one percentage point of Actual Internal EBITA in excess of 100% (rounded to the nearest .0001 of a Share); and |
(d) | If Actual Internal EBITA for such calendar year is greater than 106.25% of the Base Case for that year, the Option shall not be earned for any further Shares than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below), at which point the Option shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (x) the number of Options calculated in accordance with paragraph (c) above and (y) an amount 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) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, the Option shall be earned for 1/5 of the Shares (rounded to the nearest .0001 of a Share) at the end of that year. |
(2) | With respect to the 2010 calendar year, the Option shall vest and be exercisable with respect to 25% of the total number of Shares earned under paragraph (1) above at the end of such calendar year (“Initial Vesting Date”); and the remaining 75% of the total number of Shares earned for such calendar year shall vest and be exercisable in equal monthly installments over the 36 months following the Initial Vesting Date starting with the first monthly anniversary of the Initial Vesting Date. All vesting shall be conditioned on continued service with the Company through the applicable vesting date. |
(3) | With respect to each of thecalendar years in the Performance Period after 2010, the Option shall be exercisable to the extent that the Base Case is achieved during such period as follows, and the portion of the Option that is earned for such calendar year shall vest in accordance with the vesting schedule set forth in paragraph (4) below: |
(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 be earned for any Shares at the end of that year; |
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(b) | If Actual Internal EBITA for such calendar year is between 95% and 100% of the Base Case for that year, the number of Shares underlying the Option that will be earned at the end of that year 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); and |
(c) | If Actual Internal EBITA for such calendar year is greater than 100% of the Base Case for that year, the Option shall not be earned for any Shares other than provided above until Actual Internal EBITA for such calendar year is equal to or greater than 100% of the Original Base Case (as defined below) for that year, at which point the Option shall be earned as follows: |
(i) | if Actual Internal EBITA for such calendar year is between 100% and 106.25% of the Original Base Case for that year, the number of Shares underlying the Option that will be earned for the calendar year will be the sum of (x) the number of Shares calculated in accordance with paragraph (b) above and (y) an amount 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) between 100% and 106.25% of the Original Base Case; and |
(ii) | if Actual Internal EBITA for such calendar year is equal to or greater than 106.25% of the Original Base Case for that year, the Option shall be earned for 1/5 of the Shares (rounded to the nearest .0001 of a Share) at the end of that year. |
(4) | With respect to each of thecalendar years in the Performance Period after 2010, all Options shall vest and be exercisable as of the end of the applicable calendar year, to the extent earned, and subject to the other terms of the Agreement. |
Original Base Case | 2010 | 2011 | 2012 | 2013 | 2014 | |||||||||||||||
Actual Internal EBITA (in millions) |
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Restrictive Covenants
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Number of Shares:
Price per Share:
Date of Grant:
(a) | “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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(b) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(c) | “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; and |
(d) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference. |
(a) | upon the Optionee’s Employment being terminated involuntarily within six months following a Change of Control other than for Cause, the Option shall become fully vested; |
(b) | if the Optionee’s Employment terminates without or prior to a Change of Control as a result of (i) termination of the Optionee by Employer without Cause, (ii) resignation by the Optionee or (iii) the Optionee’s Disability or death, then the Option shall immediately stop vesting; and |
(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. |
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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, in case of an exercise on the Final Exercise Date, 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. |
(b) | 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 90th 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. |
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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. |
(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. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
By: | ||||||
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Vesting Schedule
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Restrictive Covenants
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Number of Shares:
Price per Share:
Date of Grant:
(a) | “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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(b) | “Employer” means the Company or, as the case may be, its Affiliate with whom the Optionee has entered into an Employment relationship; |
(c) | “Restrictive Covenant” means any of the restrictive covenants set forth in Exhibit A, which is incorporated herein by reference; and |
(d) | “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. |
(a) | upon the Optionee’s Employment being terminated involuntarily within six months following a Change of Control other than for Cause, the Option shall become fully vested; |
(b) | if the Optionee’s Employment terminates without or prior to a Change of Control as a result of (i) termination of the Optionee by Employer without Cause, (ii) resignation by the Optionee or (iii) the Optionee’s Disability or death, then the Option shall immediately stop vesting; and |
(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. |
(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 Companies at their 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, in case of an exercise on the Final Exercise Date, 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 Companies’ 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. To the extent that Shares are withheld to cover the exercise price or Withholding Taxes in accordance with the preceding sentence, those Shares will not be issued to the Optionee. In the event that this Option is exercised by a person other than the Optionee, the Companies 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) | 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 90th 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. |
(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. |
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SunGard Capital Corp. | SUNGARD CAPITAL CORP. | |||||
By: | ||||||
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Vesting Schedule
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Restrictive Covenants
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SunGard Capital Corp. II
SunGard Data Systems Inc.
Computation of Ratio of Earnings to Fixed Charges (Unaudited)
($ in millions)
Three Months Ended June 30, | Six Months Ended June 30, | |||||||||||||||
2009 | 2010 | 2009 | 2010 | |||||||||||||
Fixed charges | ||||||||||||||||
Interest expense | $ | 141 | $ | 148 | $ | 282 | $ | 297 | ||||||||
Amortization of debt issuance costs and debt discount | 10 | 11 | 20 | 22 | ||||||||||||
Portion of rental expense representative of interest | 20 | 19 | 40 | 39 | ||||||||||||
Total fixed charges | $ | 171 | $ | 178 | $ | 342 | $ | 358 | ||||||||
Earnings | ||||||||||||||||
Income (loss) before income taxes | $ | (7 | ) | $ | (19 | ) | $ | (50 | ) | $ | (104 | ) | ||||
Fixed charges per above | 171 | 178 | 342 | 358 | ||||||||||||
Total earnings | $ | 164 | $ | 159 | $ | 292 | $ | 254 | ||||||||
Ratio of earnings to fixed charges | * | * | * | * |
* | Earnings for the three months ended March 31, 2009 and 2010 and for the six months ended June 30, 2009 and 2010 were inadequate to cover fixed charges by $7 million, $19 million, $50 million and $104 million, respectively. |
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Required by Rule 13a-14(a) or Rule 15d-14(a) and
Section 302 of the Sarbanes-Oxley Act of 2002
Date: August 5, 2010 | ||
/s/ Cristóbal Conde | ||
President and Chief Executive Officer | ||
SunGard Capital Corp., SunGard Capital Corp. | ||
II & SunGard Data Systems Inc. |
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Required by Rule 13a-14(a) or Rule 15d-14(a) and
Section 302 of the Sarbanes-Oxley Act of 2002
Date: August 5, 2010 | ||
/s/ Robert F. Woods | ||
Chief Financial Officer | ||
SunGard Capital Corp., SunGard Capital Corp. | ||
II & SunGard Data Systems Inc. |
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Required by Rule 13a-14(b) or Rule 15d-14(b) and
Section 906 of the Sarbanes-Oxley Act of 2002
Date: August 5, 2010 | ||
/s/ Cristóbal Conde | ||
Chief Executive Officer |
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Required by Rule 13a-14(b) or Rule 15d-14(b) and
Section 906 of the Sarbanes-Oxley Act of 2002
Date: August 5, 2010 | ||
/s/ Robert F. Woods | ||
Chief Financial Officer |