AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT OF SS&C TECHNOLOGIES HOLDINGS, INC.
Exhibit 10.28
This
Amendment No. 1 (“Amendment”), dated
April 22, 2008, to the Stockholders
Agreement (the “Agreement”) dated as of November 23, 2005, is entered into by and among
SS&C Technologies Holdings, Inc., a Delaware corporation (formerly known as Sunshine Acquisition
Corporation) (the “Company”), Carlyle Partners IV, L.P., a Delaware limited partnership
(“XX XX”), XX XX Coinvestment, L.P., a Delaware limited partnership
(“Coinvestment”, and, together with XX XX, the “Initial Carlyle Stockholders”), and
Xxxxxxx X. Xxxxx, an individual (“Executive”). Certain capitalized terms used herein
without definition have the meanings ascribed to them in the Agreement (as amended hereby).
RECITALS:
WHEREAS, the Company, the Initial Carlyle Stockholders and Executive desire to amend the
Agreement in accordance with the terms of this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein,
and other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Amendments.
(a) Effective as of the date hereof, Section 1 of the Agreement is hereby amended by (1)
deleting the word “and” immediately prior to “(v)”; (2) adding the phrase “; (vi) Transfers
pursuant to an effective registration statement under the Securities Act (as defined below); and
(vii) following an IPO, Transfers pursuant to Rule 144 promulgated under the Securities Act”
immediately following the phrase “any Permitted Transfer” in the first sentence of Section 1; and
(3) amending and restating the last sentence of Section 1 in its entirety to read as follows: “It
shall be a condition to any Permitted Transfer or any Transfer requiring approval by the Board
pursuant to this Section 1 that the transferee shall (i) agree to become a party to this Agreement
as a Carlyle Stockholder (if such Transfer is effected by a Carlyle Stockholder) or as an Executive
Stockholder (if such transfer is effected by an Executive Stockholder), as the case may be, and
(ii) execute a signature page in the form attached as Exhibit A hereto acknowledging that such
transferee agrees to be bound by the terms hereof.”
(b) Effective as of the date hereof, Section 3 of the Agreement is hereby amended by adding
the phrase “(other than Transfers pursuant to an effective registration statement in connection
with an IPO)” immediately following the phrase “Third Party Purchaser” the first time such phrase
appears in the first sentence of Section 3.
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(c) Effective as of, and subject to, the closing of the Company’s initial public offering,
Section 7(a) of the Agreement is hereby amended and restated in its entirety to read as follows:
“(a) Nomination. The Company and the Stockholders shall take such action as may be required
under applicable law to cause the Board to consist of seven (7) Directors. The Stockholders and the
Company agree that (i) the Carlyle Stockholders shall collectively be entitled to nominate for
election to the Board four (4) Directors (the “Carlyle Designees”); (ii) the Chief
Executive Stockholders shall collectively be entitled to nominate for election to the Board two (2)
Directors (the “Executive Designees”), one of whom shall be Executive for so long as
Executive is the Chief Executive Officer of the Company; and (iii) the Carlyle Stockholders and the
Chief Executive Stockholders shall collectively be entitled to nominate for election to the Board
one (1) Director (the “Stockholders Designee”); provided, however, that (A) the number of
Carlyle Designees shall be reduced to (x) three (3) Directors at such time as the Carlyle
Stockholders hold less than 40% of the then-outstanding shares of Common Stock, (y) two (2)
Directors at such time as the Carlyle Stockholders hold less than 30% of the then-outstanding
shares of Common Stock and (z) one (1) Director at such time as the Carlyle Stockholders hold less
than 15% of the then-outstanding shares of Common Stock and (B) the number of Executive Designees
shall be reduced to one (1) at such time as Executive holds less than 15% of the then-outstanding
shares of Common Stock. So long as the Carlyle Stockholders shall be entitled to nominate directors
for election to the Board pursuant to this Section 7(a), XX XX shall be entitled to designate at
least one of the Carlyle Designees. At the option of the Carlyle Stockholders, the Carlyle
Stockholders may, by written notice to the Company, designate the Carlyle Stockholder(s) that have
the right to nominate the individual Carlyle Designees. For so long as Executive serves as a member
of the Board, Executive shall be a member of any Executive Committee of the Board.”
(d) Effective as of, and subject to, the closing of the Company’s initial public offering,
Section 7(d) of the Agreement is hereby amended and restated in its entirety to read as follows:
“(d) Vacancies. In the event that a vacancy is created on the Board at any time by
death, disability, retirement, resignation or removal of a Director designated by the Carlyle
Stockholders, each Stockholder hereby agrees to vote all Shares owned or held of record by it for
the individual designated to fill such vacancy by the Carlyle Stockholders. In the event that a
vacancy is created on the Board at any time by death, disability, retirement, resignation or
removal of a Director designated by Executive, each Stockholder hereby agrees to vote all Shares
owned or held of record by it for the individual designated to fill such vacancy by Executive. In
the event that a vacancy is created on the Board at any time by death, disability, retirement,
resignation or removal of the Director designated collectively by the Carlyle Stockholders and the
Chief Executive Stockholders, each Stockholder hereby agrees to vote all Shares owned or held of
record by it for the individual designated to fill such vacancy by the Carlyle Stockholders and the
Chief Executive Stockholders, collectively.”
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(e) Effective as of, and subject to, the closing of the Company’s initial public offering,
Section 9 of the Agreement is hereby amended by adding “, 7(c)” immediately following the phrase
“(i) the provisions of Sections 3, 4” in the proviso of Section 9.
(f) Effective as of, and subject to, the closing of the Company’s initial public offering,
Section 10(b) of the Agreement is hereby amended by adding “Stockholders Designee” and “Section 7”
in the appropriate alphabetical position in the list of defined terms.
Section 2. Miscellaneous.
(a) Effect of Amendment. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the
rights and remedies of the Parties under the Agreement or any agreement or instrument referred to
therein, and shall not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Agreement or any agreement or instrument
referred to therein, all of which are ratified and affirmed in all respects and shall continue in
full force and effect. This Amendment shall apply and be effective only with respect to the
provisions of the Agreement specifically referred to herein. On and after the date hereof, any
reference to the Agreement in any agreement or instrument referred to therein shall mean the
Agreement as modified hereby.
(b) Governing Law. This Amendment 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).
(c) Interpretation. The headings of the Sections contained in this Amendment are
solely for the purpose of reference, are not part of the agreement of the Parties and shall not
affect the meaning or interpretation of this Amendment.
(d) Counterparts. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall be deemed to constitute one
and the same agreement.
(e) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the Parties have executed this Amendment on the date first written above.
| SS&C TECHNOLOGIES HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Chairman of the Board and Chief Executive Officer |
|||
| CARLYLE PARTNERS IV, L.P., | ||||||||
| a Delaware limited partnership | ||||||||
| By: | TC Group IV, L.P., | |||||||
| its General Partner | ||||||||
| By: | TC Group IV Managing GP, L.L.C., | |||||||
| its General Partner | ||||||||
| By: | TC Group, L.L.C., | |||||||
| its Managing Member | ||||||||
| By: | TCG Holdings, L.L.C., | |||||||
| its Managing Member | ||||||||
| By: | /s/ Xxxxxxxx X. Xxxxx, XX | |||||||
| Name: Xxxxxxxx X. Xxxxx, XX | ||||||||
| Title: Managing Director | ||||||||
| XX XX COINVESTMENT, L.P., | ||||||||
| a Delaware limited partnership | ||||||||
| By: | TC Group IV, L.P., | |||||||
| its General Partner | ||||||||
| By: | TC Group IV Managing GP, L.L.C., | |||||||
| its General Partner | ||||||||
| By: | TC Group, L.L.C., | |||||||
| its Managing Member | ||||||||
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| By: | TCG Holdings, L.L.C., | |||||||
| its Managing Member | ||||||||
| By: | /s/ Xxxxxxxx X. Xxxxx, XX | |||||||
| Name: Xxxxxxxx X. Xxxxx, XX | ||||||||
| Title: Managing Director | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
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