VOTING AGREEMENT
Appendix B
This VOTING AGREEMENT (the “Agreement”), dated
as of July 28, 2005, is made by and among Xxxxxxx X. Xxxxx
(the “Principal Stockholder”), SS&C
Technologies, Inc., a Delaware corporation (the
“Company”), Sunshine Acquisition Corporation, a
Delaware corporation (“Parent”), and Sunshine
Merger Corporation, a Delaware corporation and wholly owned
subsidiary of Parent (“Merger Co”). Capitalized
terms used herein but not otherwise defined herein shall have
the meanings ascribed to such terms in the Merger Agreement (as
defined below).
WHEREAS, the Company, Parent and Merger Co are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as
amended or supplemented from time to time in accordance with the
terms thereof, the “Merger Agreement”),
providing for the merger of Merger Co with and into the Company
with the Company as the surviving corporation (the
“Merger”), upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Principal Stockholder
beneficially owns 5,872,020 shares of common stock, par
value $0.01 per share, of the Company (the “Common
Stock”); and
WHEREAS, as a condition to the willingness of Parent and Merger
Co to enter into the Merger Agreement, each of Parent and Merger
Co has required that the Principal Stockholder agree, and in
order to induce Parent and Merger Co to enter into the Merger
Agreement, the Principal Stockholder has agreed, to enter into
this Agreement with respect to (a) all the shares of Common
Stock now beneficially owned by, and all the shares of Common
Stock or other voting securities of the Company which may
hereafter be acquired by, or on behalf of, or issued to the
Principal Stockholder (collectively, the
“Shares”), and (b) certain other matters
as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I.
Section 1.1 Voting
Agreement. The Principal Stockholder hereby agrees that
during the time this Agreement is in effect, at any meeting of
the stockholders of the Company, however called, or at any
adjournment thereof or in any other circumstances upon which a
vote, consent or other approval (including by written consent)
is sought, the Principal Stockholder shall (a) when a
meeting is held, appear at such meeting or otherwise cause all
Vote Eligible Shares to be counted as present thereat for
the purpose of establishing a quorum and (b) vote (or cause
to be voted) all Vote Eligible Shares: (i) in favor of
the Merger, the Merger Agreement and the transactions
contemplated by the Merger Agreement if a vote, consent or other
approval (including by written consent) with respect to any of
the foregoing is sought and (ii) against any
(x) merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company or
any other Acquisition Proposal or (y) amendment of the
Company’s certificate of incorporation or by-laws or other
proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction
would in any manner reasonably be expected to impede, delay,
frustrate, prevent or nullify the Merger, the Merger Agreement
or any of the other transactions contemplated by the Merger
Agreement or result in a breach in any material respect of any
representation, warranty, covenant or agreement of the Company
under the Merger Agreement or change in any manner the voting
rights of any class of the Common Stock.
“Vote Eligible Shares” means all Shares
held of record by the Principal Stockholder and all other Shares
which the Principal Stockholder has the power to vote at any
meeting of the stockholders of the Company or in connection with
any written consent of Stockholders.
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Section 1.2 Acknowledgment.
The Principal Stockholder hereby acknowledges receipt and review
of a copy of the Merger Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL
STOCKHOLDER
The Principal Stockholder hereby represents and warrants to
Parent as follows:
Section 2.1 Authority
Relative To This Agreement. The Principal Stockholder
has all necessary power and authority to execute and deliver
this Agreement, to perform his obligations hereunder and to
consummate the transactions to be consummated by him as
contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Principal Stockholder and,
assuming the due authorization, execution and delivery by the
other parties hereto, constitutes a legal, valid and binding
obligation of the Principal Stockholder, enforceable against the
Principal Stockholder in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium
or other similar laws relating to creditors rights generally and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
Law).
Section 2.2 No
Conflict.
(a) The execution and delivery of this Agreement by the
Principal Stockholder do not, and the performance of his
obligations under this Agreement and the consummation of the
transactions to be consummated by him as contemplated hereby
shall not, (i) conflict with or violate any Law applicable
to the Principal Stockholder or by which the Shares are bound or
affected or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance on, any of the
Shares pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Principal Stockholder is a
party or by which the Principal Stockholder or the Shares are
bound or affected.
(b) The execution and delivery of this Agreement by the
Principal Stockholder do not, and the performance of his
obligations under this Agreement shall not, require any consent,
approval, authorization or permit of, or filing with or
notification to, any court or arbitrator or any governmental
entity, agency or official except for applicable requirements,
if any, of the Securities Exchange Act of 1934, as amended, and
except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by the
Principal Stockholder of his obligations under this Agreement.
Section 2.3 Ownership
Of Shares. As of the date hereof, the Principal
Stockholder is the record and beneficial owner of the Shares set
forth opposite the Principal Stockholder’s name on
Schedule A hereto, free and clear of all pledges,
liens, proxies, claims, charges, security interests, preemptive
rights, voting trusts, voting agreements, options, rights of
first offer or refusal and any other encumbrances or
arrangements whatsoever with respect to the ownership, transfer
or other voting of the Shares (collectively,
“Liens”). There are no outstanding options,
warrants or rights to purchase or acquire, or agreements or
arrangements relating to the voting of, any Shares and the
Principal Stockholder has the sole authority to direct the
voting of the Shares in accordance with the provisions of this
Agreement and the sole power of disposition with respect to the
Shares, with no restrictions, subject to applicable federal
securities laws on his rights of disposition pertaining thereto
(other than Liens or restrictions created by this Agreement and
the Contribution and Subscription Agreement, dated as of
July 28, 2005, by and among the Principal Stockholder and
Parent (the ‘Contribution Agreement”)). As of
the date hereof, the Principal Stockholder does not own
beneficially or of record any equity securities of the Company
other than the Shares set forth opposite the Principal
Stockholder’s name on Schedule A hereto. The
Principal Stockholder has not appointed or granted any proxy
which is still in effect with respect to any Shares.
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Section 2.4 No
Finder’s Fee. No broker, investment banker,
financial advisor or other person is entitled to any
broker’s, finder’s, financial advisor’s or other
similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf
of the Principal Stockholder.
Section 2.5 Reliance
By Parent and Merger Co. The Principal Stockholder
understands and acknowledges that Parent and Merger Co are
entering into the Merger Agreement in reliance upon the
Principal Stockholder’s execution and delivery of this
Agreement. The Principal Stockholder is an “accredited
investor” (as defined under the Securities Act of 1933, as
amended) and a sophisticated investor, is capable of evaluating
the merits and risks of his investments and has the capacity to
protect his own interests.
ARTICLE III.
COVENANTS OF THE PRINCIPAL STOCKHOLDER
Section 3.1 No
Inconsistent Agreement. The Principal Stockholder hereby
covenants and agrees that the Principal Stockholder (a) has
not entered into and shall not enter into any agreement that
would restrict, limit or interfere with the performance of the
Principal Stockholder’s obligations hereunder or under the
Contribution Agreement and (b) shall not knowingly take any
action that would reasonably be expected to make any of his
representations or warranties contained herein or in the
Contribution Agreement untrue or incorrect or have the effect of
preventing or disabling him from performing his obligations
under this Agreement or the Contribution Agreement.
Section 3.2 No
Transfer. Other than pursuant to the terms of this
Agreement, the Merger Agreement or the Contribution Agreement,
without the prior written consent of Parent or as otherwise
provided in this Agreement, during the term of this Agreement,
the Principal Stockholder hereby agrees to not, directly or
indirectly, (a) grant any proxies or enter into any voting
trust or other agreement or arrangement with respect to the
voting of any Shares or (b) sell, assign, transfer,
encumber or otherwise dispose of (including by merger,
consolidation or otherwise by operation of Law), or enter into
any contract, option or other arrangement or understanding with
respect to the direct or indirect assignment, transfer,
encumbrance or other disposition of (including by merger,
consolidation or otherwise by operation of Law), any Shares. The
Principal Stockholder agrees, while this Agreement is in effect,
to promptly notify Parent of the number of any Shares acquired
by the Principal Stockholder, if any, after the date hereof.
Section 3.3 No
Solicitation. (a) The Principal Stockholder hereby
acknowledges that he is aware of the covenants of the Company
contained in Section 6.04 of the Merger Agreement and
hereby agrees that he shall, and shall cause his representatives
to, immediately cease any discussions or negotiations with any
parties that may be ongoing with respect to an Acquisition
Proposal and request the prompt return or destruction of all
confidential information previously furnished to such parties or
their representatives. The Principal Stockholder hereby further
agrees that he shall not, nor shall he permit any of his
representatives to, directly or indirectly, (i) solicit,
initiate, facilitate or knowingly encourage (including by way of
furnishing non-public information or providing access to the
Company’s or the Principal Stockholder’s properties,
books, records or personnel, as applicable) any inquiries
regarding, or the making of any proposal or offer that
constitutes, or could reasonably be expected to lead to, an
Acquisition Proposal or (ii) have any discussions or
participate in any negotiations regarding an Acquisition
Proposal, or otherwise facilitate any efforts or attempt to
implement an Acquisition Proposal or execute or enter into any
agreement, understanding or arrangement with respect to an
Acquisition Proposal, except, in each case, to the extent that
the Company is permitted to engage in such solicitation,
initiation, facilitation, discussion or negotiation pursuant to
Section 6.04 of the Merger Agreement; provided, that, to
the extent that the Company informs the Principal Stockholder
that the Board of Directors of the Company has determined that
the Company is entitled to engage in any such solicitation,
initiation, facilitation, discussion or negotiation pursuant to
Section 6.04 of the Merger Agreement, the Principal
Stockholder may conclusively rely on such determination and
shall not be held liable for breach under this Agreement if such
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determination is later determined to be incorrect or
inconsistent with the terms of this Agreement. The Principal
Stockholder shall promptly advise Parent orally and in writing
of the receipt by the Principal Stockholder or any of his
representatives of any Acquisition Proposal or any inquiry with
respect to, or that could reasonably be expected to lead to, any
Acquisition Proposal (in each case within 24 hours of
receipt thereof), specifying the material terms and conditions
thereof and the identity of the party making such Acquisition
Proposal or inquiry, and shall provide to Parent (within such
24 hour time frame), a copy of all written materials
provided to or by the Principal Stockholder in connection with
such Acquisition Proposal or inquiry. The Principal Stockholder
shall keep Parent fully informed on a current basis of the
status of any such Acquisition Proposal or inquiry and shall
promptly notify Parent (as promptly as practicable and in any
event within 24 hours) orally and in writing of any
modifications to the financial or other material terms of such
Acquisition Proposal or inquiry and shall provide to Parent,
within such 24 hour timeframe, a copy of all written
materials subsequently provided to or by the Principal
Stockholder in connection with any such Acquisition Proposal or
inquiry.
(b) Notwithstanding the foregoing, nothing in this
Agreement shall be deemed to prohibit the Principal Stockholder
from fulfilling his obligations as the chief executive officer
and as a director of the Company with respect to taking, as a
representative of the Company, any action which is expressly
permitted to be taken by the Company pursuant to
Section 6.04 of the Merger Agreement or from entering into
negotiations and discussions regarding the Shares with respect
to any Acquisition Proposal at any time that the Company is
permitted to engage in negotiations or discussions with respect
thereto under such Section 6.04.
Section 3.4 Waiver
Of Appraisal Rights. The Principal Stockholder hereby
irrevocably and unconditionally waives, and agrees to prevent
the exercise of, any rights of appraisal, any dissenters’
rights and any similar rights relating to the Merger or any
related transaction that the Principal Stockholder may directly
or indirectly have by virtue of the ownership of any Shares.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Principal
Stockholder and Parent that the Company has all necessary power
and authority to execute and deliver this Agreement and this
Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and
delivery by the other parties hereto, is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws
relating to creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at Law). Assuming the
accuracy of Parent’s representations and warranties in
Section 4.10 of the Merger Agreement, the Board of
Directors of the Company has taken all necessary action to
ensure that the restrictions on business combinations contained
in Section 203 of the General Corporation Law of the State
of Delaware will not apply to this Agreement or the transactions
contemplated by this Agreement. The execution and delivery of
this Agreement by the Company do not, and the consummation by
the Company of the transactions contemplated hereby and
compliance by the Company with the terms hereof will not,
conflict with, or result in any violation or default of (with or
without notice or lapse of time or both), any provision of, the
certificate of incorporation or by-laws of the Company, any
trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit,
concession, franchise, license, or Law applicable to the Company
or to the Company’s property or assets.
ARTICLE V.
MISCELLANEOUS
Section 5.1 Termination.
This Agreement and all of its provisions shall terminate upon
the earliest of (a) the Effective Time, (b) the
termination of the Merger Agreement in accordance with its
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terms, and (c) written notice of termination of this
Agreement by Parent to the Principal Stockholder (such date of
termination, the “Termination Date”). Nothing
in this Section 5.1 shall be deemed to release any party
from any liability for any breach by such party of the terms and
provisions of this Agreement.
Section 5.2 Amendment
Of Merger Agreement. The obligations of the Principal
Stockholder under this Agreement shall terminate if the Merger
Agreement is amended or otherwise modified after the date hereof
without the prior written consent of the Principal Stockholder
in a manner that reduces or changes the form of Merger
Consideration or adversely affects the rights of the Principal
Stockholder.
Section 5.3 Fees
And Expenses. Except as otherwise provided herein or as
set forth in the Merger Agreement, all costs and expenses
incurred in connection with the transactions contemplated by
this Agreement shall be paid by the party incurring such costs
and expenses.
Section 5.4 Notices.
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (a) on the
date of delivery if delivered personally, (b) on the first
business day following the date of dispatch if delivered by a
nationally recognized next-day courier service, (c) on the
fifth business day following the date of mailing if delivered by
registered or certified mail (postage prepaid, return receipt
requested) or (d) if sent by facsimile transmission, when
transmitted and receipt is confirmed. All notices hereunder
shall be delivered to the respective parties at the following
addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this
Section 5.4):
if to Parent or Merger Co:
| Sunshine Acquisition Corp. | |
| c/o The Carlyle Group | |
| 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx | |
| Xxxxxxxxx, XX 00000 | |
| Attention: Xxxxxxxx X. Xxxxx XX | |
| Facsimile: (000) 000-0000 |
with a copy to:
| Xxxxxx & Xxxxxxx LLP | |
| 000 Xxxxxxxx Xxxxxx, X.X. | |
| Xxxxx Xxxxx | |
| Xxxxxxxxxx, X.X. 00000 | |
| Attention: Xxxxxx X. Xxxxxx | |
| Facsimile: (000) 000-0000 |
if to the Company:
| SS&C Technologies, Inc. | |
| 00 Xxxxxxxxx Xxxx | |
| Xxxxxxx, XX 00000 | |
| Attention: Xxxxxxx X.X. Xxxxxxx | |
| Facsimile: (000) 000-0000 |
with a copy to each of:
| Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP | |
| 00 Xxxxx Xxxxxx | |
| Xxxxxx, XX 00000 | |
| Attention: Xxxx X. Xxxxxxx | |
| Facsimile: (000) 000-0000 |
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and
| Morris, Nichols, Arsht & Xxxxxxx | |
| 0000 Xxxxx Xxxxxx Xxxxxx | |
| X.X. Xxx 0000 | |
| Xxxxxxxxxx, XX 00000 | |
| Attention: Xxxxxxxxx X. Xxxxxxxxx | |
| Facsimile: (000) 000-0000 |
if to the Principal Stockholder
| Xxxxxxx X. Xxxxx | |
| 00 Xxxx Xxxxx Xx. | |
| Xxxx, XX 00000 | |
| Facsimile: (000) 000-0000 |
with a copy to:
| Cadwalader, Xxxxxxxxxx & Xxxx LLP | |
| Xxx Xxxxx Xxxxxxxxx Xxxxxx | |
| Xxx Xxxx, XX 00000 | |
| Attention: Xxxxx X. Xxxxxxxxxx | |
| Facsimile: (000) 000-0000 |
Section 5.5 Severability.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of Law, or
public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner
in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent
possible.
Section 5.6 Entire
Agreement; Assignment. This Agreement, the Merger
Agreement and the Contribution Agreement constitute the entire
agreement among the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, among the parties hereto,
or any of them, with respect to the subject matter hereof and
thereof. This Agreement shall not be assigned (whether pursuant
to a merger, by operation of Law or otherwise), except that
Parent or Merger Co may assign all or any of their rights and
obligations hereunder to an Affiliate, provided,
however, that no such assignment shall relieve the
assigning party of its obligations hereunder if such assignee
does not perform such obligations.
Section 5.7 Amendment.
This Agreement may be amended by the parties hereto by action
taken by or on behalf of the respective Boards of Directors of
the parties (in the case of the Company, Parent and Merger Co)
and the Principal Stockholder at any time prior to the Effective
Time. This Agreement may not be amended except by an instrument
in writing signed by each of the parties hereto.
Section 5.8 Waiver.
At any time prior to the Effective Time, any party hereto may
(a) extend the time for the performance of any obligation
or other act of any other party hereto, (b) waive any
inaccuracy in the representations and warranties of any other
party contained herein or in any document delivered pursuant
hereto and (c) waive compliance with any agreement of any
other party or any condition to its own obligations contained
herein. Any such extension or waiver shall be valid if set forth
in an instrument in writing signed by the party or parties to be
bound thereby. The failure of any party to assert any of its
rights under this Agreement or otherwise shall not constitute a
waiver of those rights.
Section 5.9 Parties
in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in
this Agreement, express or implied, is intended to or shall
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confer upon any other Person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
Section 5.10 Governing
Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without
giving effect to the choice of law principles therein).
Section 5.11 Specific
Performance; Submission To Jurisdiction. The parties
agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions
of this Agreement in the Court of Chancery or other courts of
the State of Delaware, this being in addition to any other
remedy to which such party is entitled at Law or in equity. In
addition, each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of the Court of Chancery or
other courts of the State of Delaware in the event any dispute
arises out of this Agreement or any of the transactions
contemplated by this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from such court, (c) agrees that
it will not bring any action relating to this Agreement or any
of the transactions contemplated by this Agreement in any court
other than the Court of Chancery or other courts of the State of
Delaware and (d) to the fullest extent permitted by Law,
consents to service being made through the notice procedures set
forth in Section 5.4. Each party hereto hereby agrees that,
to the fullest extent permitted by Law, service of any process,
summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 5.4 shall be
effective service of process for any suit or proceeding in
connection with this Agreement or the transactions contemplated
hereby.
Section 5.12 Waiver
of Jury Trial. Each of the parties hereto hereby waives
to the fullest extent permitted by applicable Law any right it
may have to a trial by jury with respect to any litigation
directly or indirectly arising out of, under or in connection
with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of
any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to
enforce that foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into
this Agreement by, among other things, the mutual waivers and
certifications in this Section 5.12.
Section 5.13 Headings.
The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
Section 5.14 Counterparts.
This Agreement may be executed and delivered (including by
facsimile or other electronic transmission) in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be
an original but all of which taken together shall constitute one
and the same agreement.
Section 5.15 Further
Assurances.
From time to time, at the request of another party and without
further consideration, each party hereto shall take such
reasonable further action as may reasonably be necessary or
desirable to consummate and make effective the transactions
contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Principal Stockholder, the Company,
Parent and Merger Co have caused this Agreement to be duly
executed on the date hereof.
| Sunshine Acquisition Corporation |
| By: | /s/ Xxxxxxxx X. Xxxxx XX |
|
|
|
| Name: Xxxxxxxx X. Xxxxx XX |
| Title: | President |
| Sunshine Merger Corporation |
| By: | /s/ Xxxxxxxx X. Xxxxx XX |
|
|
|
| Name: Xxxxxxxx X. Xxxxx XX |
| Title: | President |
| SS&C TECHNOLOGIES, INC. |
| By: | /s/ Xxxxxxx X. Xxxxxxx |
|
|
|
| Name: Xxxxxxx X. Xxxxxxx |
| Title: | Senior Vice President and Chief Financial Officer |
| By: | /s/ Xxxxxxx X. Xxxxx |
|
|
|
| Xxxxxxx X. Xxxxx |
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