Exhibit 4.2
STOCK PURCHASE WARRANT AGREEMENT
This STOCK PURCHASE WARRANT AGREEMENT (the "Agreement"), dated as of March
29, 2002 by and between Conseco, Inc., an Indiana corporation (the "Company"),
and SS&C Technologies, Inc., a Delaware corporation ("SS&C").
RECITALS
WHEREAS, the Company and/or certain of its affiliates have significant
business relationships with SS&C, including the license of software from SS&C
and the use of certain consulting services;
WHEREAS, to reflect such business relationship, on May 24, 2001, the Board
of Directors of SS&C authorized the grant of a five-year warrant for the Company
to purchase 60,000 shares of SS&C's common stock at an exercise price of $7.00
per share; and
WHEREAS, the parties desire to set forth herein their agreement regarding
the terms and conditions of the warrant, consistent with the action of the Board
of Directors of SS&C. NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
X. XXXXX OF WARRANT.
(a) Subject to the terms of this Agreement, SS&C hereby grants to
the Company the right, option and warrant (the "Warrant") to purchase Sixty
Thousand (60,000) shares (the "Warrant Shares") subject to adjustment as
provided herein, of the common stock, par value $.01 per share, of SS&C (the
"Common Stock") for Seven Dollars ($7.00) per share (the "Exercise Price"),
subject to adjustment as provided herein.
(b) The Warrant is fully vested and fully exercisable as of the date
hereof, and the Company may exercise the Warrant in whole or in part from time
to time up to March 29, 2007 (the "Expiration Date"). On and after the
Expiration Date, the Warrant shall automatically terminate and be null and void
and of no further effect, and thereafter the Company may not purchase any
Warrant Shares hereunder.
2. EXERCISE OF WARRANT; ISSUANCE OF SHARES.
(a) To exercise the Warrant in whole or in part, the Company shall
give written notice to SS&C ("Exercise Notice") to that effect not later than
the Expiration Date. The Exercise Notice shall (i) specify the number of Warrant
Shares to which the exercise relates (which number may not be fewer than five
thousand (5,000) Warrant Shares for each exercise), and (ii) be accompanied by
the payment of the aggregate Exercise Price (being the number of Warrant Shares
being exercised multiplied by the Exercise Price then in effect), as set forth
in Section 2(b). In connection with each exercise, the SS&C shall be entitled to
require that the Company pay the amount of any applicable taxes, including issue
or transfer taxes, if any, required to be paid in connection therewith.
(b) At its option, the Company may pay the aggregate Exercise Price
for any given exercise of Warrant Shares by either of the following methods, or
any combination thereof. (i) in cash, by check or wire transfer to an account
specified by SS&C, and (ii) with Exchange Shares, as defined below. As used
herein, "Exchange Shares" means that number of Warrant Shares specified by the
Company in its Exercise Notice that the Company directs SS&C to retain and not
issue to the Company. Each Exchange Share shall be equal in value to the closing
price of the Common Stock on the Nasdaq Stock Market as of the date of the
Exercise Notice. The number of Warrant Shares issued to the Company in
connection with any exercise, as set forth in Section 2(c), shall be reduced by
the number of Exchange Shares, and the Exchange Shares also shall reduce the
number of Warrant Shares available for any future exercise.
(c) After receiving a properly completed Exercise Notice and payment
for the Warrant Shares exercised, SS&C shall issue to the Company a stock
certificate for the number of Warrant Shares purchased pursuant to each Exercise
Notice, net of any Exchange Shares. Each such certificate shall bear a
restrictive legend to the effect that the shares of Common Stock evidenced by
the certificate were issued in a transaction that was not registered pursuant to
the Securities Act of 1933, as amended (the "1933 Act") or any state securities
laws, and may not be resold unless pursuant to a transaction that has been
registered under the 1933 Act, pursuant to an exemption from registration, or
pursuant to Rule 144 of the Securities and Exchange Commission (the "SEC").
3. ASSIGNMENT.
The Company may not assign or transfer this Agreement in whole or in part,
nor assign or transfer any interest in the Warrant in any form of transaction or
other means without the prior written consent of SS&C which may be granted or
withheld in its sole discretion. Notwithstanding the foregoing, SS&C agrees that
it will consent to any assignment or transfer by the Company of the Warrant, in
whole or in part, to any entity controlled by the Company. For purposes hereof,
"control" means the ownership of more than fifty percent (50%) of the equity or
other voting securities of an entity, entitling the holder thereof to elect a
majority of the directors of such entity, or if such entity is not a
corporation, the persons who may direct the management and affairs of such
entity.
4. ADJUSTMENTS.
(a) If there is any change in the Common Stock through the
declaration of a stock dividend, a stock split, or a combination or exchange of
Common Stock, or otherwise, SS&C shall appropriately adjust the number or class
of Warrant Shares, as well as the Exercise Price. No fractional shares of Common
Stock shall be issuable due to any action aforesaid, and the aggregate number of
Warrant Shares then covered by this Agreement when changed as a result of such
action shall be adjusted to the largest number of whole Warrant Shares resulting
from such action. The Company shall not be entitled to any cash or other payment
for any fractional Warrant Share that may result.
(b) If SS&C (1) effects a reorganization, (2) consolidates with or
merges into any other person, or (3) transfers all or substantially all of its
properties or assets to any other person under any plan or arrangement
contemplating the dissolution of SS&C within 24 months from the date of such
transfer (any such transaction being referred to as a "Reorganization") then, in
each such case, the holder of the Warrant at any time after the consummation or
effective date of such Reorganization, shall receive, in lieu of the Warrant
Shares, the stock and other securities
and property (including cash) to which such holder would have been entitled, if
such holder had so exercised the Warrant immediately prior thereto (all subject
to further adjustment thereafter as provided in subsection (a)).
5. NO REGISTRATION OF WARRANT SHARES: DISCLOSURES.
(a) The Company understands and agrees that (i) the issuance of
Warrant Shares to the Company upon the exercise of the Warrant will not be
registered by SS&C under the 1933 Act in reliance on an exemption therefrom for
transactions not involving any public offering; (ii) that such securities have
not been approved or disapproved by the SEC or by any other federal or state
agency, and that no such agency has passed on the accuracy or adequacy of
disclosures made to the Company; and (iii) the Warrant Shares acquired upon
exercise of the Warrant may not be sold or transferred by the Company except
pursuant to an effective registration statement under the 1933 Act, or an
available exemption from registration. SS&C shall have no obligation to register
any transaction for the Company's sale of the Warrant Shares under the 1933 Act
or under any state securities laws.
(b) The Company further acknowledges that SS&C is a public company
whose shares of Common Stock are registered pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and that SS&C files annual and
periodic reports with the SEC under the 1934 Act. The Company has had an
opportunity to review publicly available information about SS&C and to ask
questions of and receive answers from SS&C, or a person or persons acting on its
behalf, concerning the terms and conditions pertaining to the Warrant, which
questions have been answered to the full satisfaction of the Company. SS&C has
made no representations or warranties regarding SS&C, its business, financial
condition or otherwise, except as disclosed in such public filings and press
releases.
6. REPRESENTATIONS AND WARRANTIES OF SS&C. SS&C hereby represents
and warrants to the Company as follows:
(a) SS&C is a corporation duty organized, validly existing and in
good standing under the laws of the State of Delaware, having full power and
authority to own its properties and to carry on its business as conducted.
(b) SS&C has the requisite corporate power and authority to deliver
this Agreement and perform its obligations herein. SS&C has duly executed and
delivered this Agreement and has obtained the necessary authorization to execute
and deliver this Agreement and to perform its obligations herein. This Agreement
is a valid, legal and binding obligation of SS&C enforceable against SS&C in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and subject to general principles of
equity (regardless of whether such enforcement is considered in a proceeding at
law or in equity).
(c) The Warrant Shares, when issued and delivered in accordance with
the terms of this Agreement, will be duly authorized validly issued, fully paid
and non-assessable.
7. REPRESENTATIONS AND WARRANTS OF THE COMPANY. The Company hereby
represents and warrants to SS&C as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing Xxxxxx the laws of the State of Indiana, having full power
and authority to own its properties and to carry on its business as conducted.
(b) The Company has the requisite power and authority to deliver
this Agreement, and perform its obligations herein. The Company has duly
executed and delivered this Agreement and has obtained the necessary
authorization to execute and deliver this Agreement and to perform its
obligations herein. This Agreement is a valid, legal and binding obligation of
the Company enforceable against the Company in accordance with its terms, except
to the extent that enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and subject to general principles of equity (regardless of whether
such enforcement is considered in a proceeding at law or in equity).
8. GENERAL.
(a) Each party agrees to execute and deliver any and all farther
documents and writings, and to perform such other actions, as may be or become
reasonably necessary or expedient to effect and carry out the terms of this
Agreement.
(b) This Agreement is governed by and shall be construed in
accordance with the laws of the State of Delaware, excluding any conflict-of-
laws rule or principle that might refer the governance or construction of this
Agreement to the law of another jurisdiction. If any provision of this Agreement
or the application thereof to any person or circumstance is held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of that provision to other persons or circumstances is not affected thereby, and
that provision shall be enforced to the greatest extent permitted by law.
(c) Except as otherwise expressly provided herein, this Agreement
shall be binding upon and shall inure to the benefit of the parties' respective
successors and assigns.
(d) This Agreement may be executed in counterparts, each of which
shall be deemed an original and both of which shall constitute one and the same
document.
(e) All notices and other communications provided for or permitted
to be given under this Agreement shall be in writing and shall be given by
depositing the notice in the United States mail, addressed to the person to be
notified, postage prepaid, and registered or certified with return receipt
requested, or by such notice being delivered in person or by facsimile
communication to such party. Notices given or served pursuant hereto shall be
effective upon receipt by the person so notified. All notices shall be sent to
or made at, and all payments hereunder shall be made at, the address or number
given below for the parties (or such other address or number as that person may
specify by notice to the other party in the manner specified in this paragraph):
If to the Company
Conseco, Inc.
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
If to SS&C:
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: President
Fax: (000) 000-0000.
(f) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all prior or
contemporaneous oral and written communications with respect thereto. Any
modification to this Agreement must be in writing, and no modification or waiver
shall be inferred in the absence of a written instrument signed by the party to
be charged.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first set forth above.
CONSECO, INC.
By: _____________________________
Name:
Its:
SS&C TECHNOLOGIES, INC.
By: _____________________________
Name:
Its:
