EXHIBIT 2
SHARE PURCHASE AGREEMENT
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between
X.X. XXXXXXXX HOLDING B.V. AND LEBAM BEHEER B.V.
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as the Sellers
and
SS&C TECHNOLOGIES, INC.
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as the Purchaser
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for the acquisition by the
Purchaser of the entire issued share
capital of Xxxxx Systems B.V.
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XXXXX DUTILH
Amsterdam
Place: Amsterdam
Date: 14 November 1997
SHARE PURCHASE AGREEMENT
The Undersigned:
(1) X.X. XXXXXXXX HOLDING B.V., a private company with limited liability
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organized under the laws of the Netherlands, having its registered
office in Amsterdam, the Netherlands, as the Seller ("Seller I"); and
(2) LEBAM BEHEER B.V., a private company with limited liability organized
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under the laws of the Netherlands, having its registered office in
Castricum, the Netherlands, as the Seller ("Seller II");
hereinafter jointly referred to as "the Sellers";
(3) X.X. XXXXXXXX, a Dutch citizen residing at Singel 475, 1012 WP
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Amsterdam, the Netherlands, ("Hilhorst");
(4) X.X. XXXXXXX, a Dutch citizen residing at Xxxxxxxxxxxxxxxxxxx 00, 1901
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DA Castricum, the Netherlands, ("Xxxxxxx");
and
(5) SS&C TECHNOLOGIES, INC., a company organized under the laws of the State
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of Delaware, United States of America, having its principal place of
business in Bloomfield, Connecticut, United States of America as the
Purchaser (the "Purchaser");
WHEREAS:
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A. Seller I has full right and title to 280 of the 400 issued and outstanding
shares (numbers 1 through 280) with a nominal value of NLG 100.00 each in the
share capital of Xxxxx Systems B.V., a private company with limited liability
organized under the laws of the Netherlands, having its registered office in
Amsterdam, the Netherlands (the "Company");
B. Seller II has full right and title to 120 of the 400 issued and outstanding
shares (numbers 281 through 400) with a nominal value of NLG 100.00 each in
the share capital of the Company;
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C. Hilhorst is the sole managing director of Seller I and holder of all issued
shares in the share capital of Seller I;
X. Xxxxxxx is the sole managing director of Seller II and holder of all issued
shares in the share capital of Seller II;
E. The shares referred to under A. and B., being 100% of the issued shares in
the share capital of the Company, hereinafter referred to as the "Shares";
F. The Sellers wish to sell the Shares in the Company to the Purchaser and the
Purchaser wishes to purchase the Shares from the Sellers for the purchase
price and subject to the terms and conditions set forth in this agreement
(the "Agreement");
NOW, THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
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ARTICLE 1. SALE AND TRANSFER OF SHARES
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1.1 The Sellers hereby sell the Shares to the Purchaser and the Purchaser
hereby purchases the Shares from the Sellers.
1.2 The transfer of the Shares shall be effected as at the date hereof ("the
Closing Date") by means of a separate notarial deed to be executed
before a civil law notary of Xxxxx Dutilh, attorneys, civil law notaries
and tax advisors, Xxxxxx dam, the Netherlands, or any of their deputies,
which transfer shall be registered in the shareholders' register kept by
the Company.
1.3 The Sellers hereby represent and warrant that the restrictions on the
sale and transfer of shares in the Company as contained in the articles
of association of the Company have been duly observed with respect to
the sale and transfer of the Shares provided in this Agreement.
ARTICLE 2. PURCHASE PRICE AND PAYMENT
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2.1 The purchase price for the Shares (the "Purchase Price") consists of the
following elements:
a. unregistered SS&C Technologies, Inc. common stock with a par value
of $ 0.01 (the "SS&C Shares") with an aggregate value of
approximately (US$ 750,000.00). The exact number of SS&C Shares
will, for the purposes of this Article 2., be determined as
follows: the value of one SS&C Share will be the average closing
price per share on the Nasdaq National Market for a ten (10)
business day period, commencing five (5) business days before the
Closing Date and ending four (4) business days
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after the Closing Date. The total number of shares to be
transferred to the Sellers as part of the Purchase Price will be
established by dividing US$ 750,000.00 by the value of one SS&C
Share as determined in accordance with the above. The SS&C Shares
are subject to the restric tions on transfer set forth in Article
10.
b. a cash payment of US$ 850,000.00 (eight hundred thousand US
dollars) to be paid in four installments. The first installment of
US$ 475,000.00 (four hundred seventy five thousand US dollars) will
be paid on the Closing Date by wire transfer to the bank account of
the Dutch civil law notary as mentioned in Article 1.2. The second,
third and fourth installments, each installment of US$ 125,000.00
(one hundred twenty five thousand US dollars) will be paid on
respectively the first, second and third anniversaries of the
Closing Date. Each payment of the installments to Seller I and
Seller II is conditional to the continued employment of
respectively Hilhorst and Xxxxxxx with the Company as of the date
of payment, whereby it is agreed and understood that the Sellers
will also be entitled to payment of the installments if the employ-
ment agreements of the Company with Hilhorst and Xxxxxxx are termi-
nated and Hilhorst and Xxxxxxx cannot be reproached for this
termination, unless the termination is made at the request of
Hilhorst and/or Xxxxxxx. If either Hilhorst or Xxxxxxx is still
employed by the Company and Seller I (in the event Hilhorst is
still employed) or Seller II (in the event Xxxxxxx is still
employed), as the case may be, would therefore be entitled to
payment of its part of the installments (as set forth in Article
2.3), such Seller is entitled to its part of the installments
notwithstanding the fact that the other Seller is not entitled to
any payment of its part of the installments because Xxxxxxx or, as
the case may be, Hilhorst, is not employed by the Company anymore.
c. a further cash payment, if any, described in Article 4 of this
Agreement.
2.2 The total number of SS&C shares to be transferred to the Sellers on the
basis of Article 2.1 will be divided between Seller I and Seller II in
accordance with their respective percentage of shares in the share
capital of the Company, being 70% for Seller I and 30% for Seller II.
The respective SS&C Shares will be transferred to Seller I and Seller II
ultimately 15 (fifteen) days after the Closing Date.
2.3 The amount of US$ 475,000.00 will, immediately after the Closing Date,
be transferred by the civil law notary to the Sellers as follows: An
amount of US$ 332,500.00 shall be transferred to the bank account of
Seller I with ABN AMRO Bank in Amsterdam, bank account number
00.00.00.000. An amount of US$
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142,500.00 shall be transferred to the USD bank account of Seller II
with ING Bank in Castricum, bank account number 02.10.45.046. Any
further installments as referred to under Article 2.1 will be
transferred by the Purchaser to the Sellers in accordance with their
respective percentage in the share capital of the Company, therefore US$
87,500.00 to Seller I and US$ 37,500.00 to Seller II, to the bank
accounts of Seller I and Seller II mentioned above.
ARTICLE 3. ADJUSTMENT TO PURCHASE PRICE
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3.1 Should it be found in accordance with the provisions of the following
clauses of this Article 3 that the net book value of the Company as at
the Closing Date is less than NLG 0 (zero), then the Purchase Price
shall be reduced by an amount equal to the established shortfall.
3.2 Should it be found in accordance with the provisions of the following
clauses of this Article 3 that the net book value of the Company as at
the Closing Date exceeds NLG 0 (zero), then the Purchase Price shall be
increased by an amount equal to the established excess.
3.3 For the purpose of determining the net book value of the Company, the
Purchaser's auditors shall prepare a draft for a closing balance sheet
as at the Closing Date (the "Closing Accounts") in keeping with the
methods used by the Company in the past, whereby it is agreed and
understood that no provisions will be made in respect of the change into
Euro-currency and the year 2000-problem and all costs in respect of
Windows will not be activated, and the Purchaser shall submit such draft
no later than 60 days after the Closing Date to the Sellers for the
Sellers to review and to submit all their objections -- if any --
against such draft to the Purchaser within 45 days after the draft has
been submitted to the Sellers. Should the parties fail to reach
agreement on any objection raised by the Sellers within 14 days
thereafter, then each of the Sellers may decide that any such unresolved
matters or disputes (for the purpose of this Article 3: the "Open
Issues") shall be resolved in accordance with the provisions of Article
3.4.
Should the Sellers have failed to submit their objections against the
draft Closing Accounts to the Purchaser within 45 days after the draft
Closing Accounts have been submitted to them by the Purchaser or the
Sellers do not decide within 45 days after the Draft Closing Accounts
have been submitted to them to have the Open Issues resolved in
accordance with the provisions of Article 3.4, then the Closing Accounts
and the net book value reflected therein shall be deemed to have been
finally established for the purpose of this Agreement in accordance with
the draft as submitted by the Purchaser to the Sellers.
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3.4 The Open Issues shall exclusively be submitted to and settled by a
reputable firm of accountants (for the purpose of this Article 3: the
"Accountants"), not being the Purchaser's or the Sellers' accountants,
to be jointly appointed by the parties hereto within 14 days after the
period of 14 days as referred to under Article 3.3 above has elapsed,
or, if the parties fail to agree on such appointment, within that
period, by such registered accountant as shall be appointed by the
Chairman of the Netherlands Institute of Registered Accountants
("NIVRA"). The parties shall within 14 days after such appointment
submit the draft Closing Accounts and statements of their respective
positions in writing to the Accountants.
The parties undertake to procure that the Accountants shall finally
resolve the Open Issues by way of a binding advice and shall notify the
parties of their decision, inter alia certifying the amount of the net
book value that they established, as promptly as possible and in any
event no later than 30 days after the draft Closing Accounts and the
written statements of the parties have been submitted to the
Accountants. The fees and expenses arising out of the engagement of the
Accountants shall be borne equally by the Sellers and the Purchaser.
The failure of either the Sellers or the Purchaser to timely submit to
the Accountants a written statement of its position or to otherwise fail
to respond to any request of the Accountants for information shall not
preclude or delay the Accountants' determination of the Open Issues on
the basis of information that is submitted.
3.5 Ultimately within 7 days after the net book value has been established
by the parties pursuant to Article 3.3 or by the Accountants pursuant to
Article 3.4, the Sellers shall pay the amount of the shortfall referred
to in Article 3.1 agreed between the parties or, as the case may be, as
established by the Accountants, to the Purchaser, or, as the case may
be, the Purchaser shall pay the amount of the excess referred to in
Article 3.2 agreed between the parties or, as the case may be, as
established by the Accountants, to the Sellers in accordance with their
respective percentage of shares in the share capital of the Company,
being 70% for Seller I and 30% for Seller II.
ARTICLE 4. FURTHER PAYMENT AS PART OF THE PURCHASE PRICE
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4.1 On 14 January 2001, a further cash payment as referred to in Article 2.1
(c) will be paid as part of the Purchase Price to the Sellers provided
that both Hilhorst and Xxxxxxx remain employed by the Company as from
the Closing Date throughout 31 December 2000. The aggregate further
payment, which will be paid to the Sellers in accordance with their
respective percentage of shares in
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the share capital of the Company prior to the Closing Date, being 70%
for Seller I and 30% for Seller II, will be calculated in accordance
with the following formula:
1998-2000 Revenues aggregate further payment
USD's (millions) USD's (millions)
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less than equal to 6.0 0.00
greater than equal to 6.0 and less than 7.0 0.20
greater than equal to 7.0 and less than 8.0 0.40
greater than equal to 8.0 and less than 9.0 0.70
greater than equal to 9.0 and less than 10.0 1.00
greater than equal to 10.0 and less than 11.0 1.25
greater than equal to 11.0 and less than 12.0 1.55
greater than equal to 12.0 1.90
, whereby 50% of the Revenues is to be calculated in Netherlands Guilders
at an exchange rate of two (2) Netherlands Guilders against one (1) US
Dollar.
For the purposes of this Article 4.1, the Purchaser shall submit a yearly
statement reflecting the amount of the Revenues in that year to the Sellers
as soon as possible after the end of the relevant financial year. For the
purposes of this Article 4.1, "Revenues" are to be established in
accordance with US GAAP and are defined as the total revenues derived from
sales, service and/or maintenance activities of the Company worldwide, plus
any revenues derived from sales, service and/or maintenance activities in
the Netherlands with respect to all current back- and front office products
or successors thereof of the Purchaser not being actuarial software related
products.
4.2 The Sellers will also be entitled to the further payments referred to in
Article 4.1 if the employment agreements of the Company with Hilhorst and
Xxxxxxx are terminated and Hilhorst and Xxxxxxx cannot be reproached for
this termination, unless the termination is made at the request of
Hilhorst and/or Xxxxxxx. If one of the Sellers would be entitled to
further payments on the basis of this Article 4.1, it is entitled to its
part of the further payments notwithstanding the fact that the other Seller
is not entitled to any further payments. If either Hilhorst or Xxxxxxx
dies prior to 14 January 2001, Seller I or, as the case may be, Seller II
is not entitled to any further payments under Article 4.1, unless the
Revenues up to the moment of the death of either Hilhorst or Xxxxxxx exceed
US$ 6 million.
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ARTICLE 5. REPRESENTATIONS AND WARRANTIES
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The Sellers hereby, jointly and severally, make the following representations
and warranties ("the Representations and Warranties") to the Purchaser, whereby
it is understood that although the Purchaser has made a so-called due diligence
investigation (with respect to which investigation the Dutch Parties, as
defined below, have given the Purchaser their full cooperation), this
investigation shall not relieve the Sellers of any of their obligations under
the Representations and Warranties:
1. Statements in the Preamble
--------------------------
The statements contained in the Preamble to this Agreement are true,
complete and accurate.
2. Corporate Standing
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The Company is duly organized and validly existing under the laws of the
Netherlands as a "besloten vennootschap met beperkte aansprakelijkheid"
(private company with limited liability). The Company has all requisite
corporate power and authority to own and operate its properties and to
carry on its business as now being conducted. The Company has all permits,
licenses and authorizations required by any governmental authority for the
conduct of its business.
3. Articles of Association
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The articles of association of the Company, as currently in force, are
attached to this agreement as ANNEX 5.3 and no amendment of the articles of
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association is pending.
4. Capital and Shares
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There are no depositary receipts of shares. The Shares have been validly
issued and fully paid up and are free from all charges, liens and
encumbrances whatsoever, including, without limitation, security rights
("zekerheidsrechten"), other rights in rem ("zakelijke rechten"), or
attachments ("beslagen"). The Sellers are entitled without any restriction
to sell and transfer the Shares free and clear of all aforementioned rights
and interests. The Company is not under any obligation whatsoever to issue
any further shares or debentures and no resolution to that effect has been
passed in respect of the Company. Apart from the obligations resulting
from this Agreement, there are no obligations with respect to any of the
Shares.
5. Shareholders register
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The shareholders register, a copy of which is attached hereto as ANNEX 5.5,
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is correct and complete.
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6. Trade Register
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The Company is registered in the Trade Register of the Chamber of Commerce
of Amsterdam under file number 204.206. An extract ("the Extract") of that
registration is attached hereto as ANNEX 5.6. All information set forth in
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the Extract is correct and complete.
7. Power of attorney
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The Company has granted no powers of attorney to third parties (including
any of the Employees as defined below) authorizing such third party to
represent the Company in general or for any special purpose other than
those listed in ANNEX 5.7.
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8. Authority
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This Agreement, when signed by the Sellers and Hilhorst and Xxxxxxx
(collectively referred to as: the "Dutch Parties" and individually referred
to as: a "Dutch Party"), shall be validly executed by the Dutch Parties and
shall constitute a valid and binding obligation of the Dutch Parties,
enforceable in accordance with its terms. The execution and performance by
any Dutch Party of this Agreement will not (i) conflict with, or result in
any breach, violation of or default (or give rise to any rights of
termination, cancellation or acceleration) under, the articles of
association of the Company or any note, bond, mortgage, lease, license,
permit, agreement or other instrument or obligations to which the Company
or the Dutch Parties are a party or by which either is bound; or (ii)
violate any law, order, rule or regulation applicable to the Company or the
Dutch Parties. On the part of the Dutch Parties no consent or approval by
any governmental authority is required in connection with the execution and
performance of this Agreement by the Dutch Parties.
9. The Financial Statements
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The balance sheet ("the Balance Sheet") of the Company as at 31 December
1996 ("the Balance Sheet Date") and its profit and loss account for the
year then ended, true copies of which are attached to this Agreement as
ANNEX 5.9, have been prepared in accordance with the requirements of all
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relevant laws and accounting principles generally accepted in the
Netherlands and give a true and fair view of the assets and liabilities of
the Company on the Balance Sheet Date.
10. Absence of Certain Changes or Events
------------------------------------
From the Balance Sheet Date up to and including the Closing Date, there has
been no change in the condition, financial or otherwise, of the Company
which has adversely affected its net worth or in general its business,
properties or financial condition and the Company has not incurred any
further or other liabilities than as shown in the Balance Sheet, other than
changes which have
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occurred in the ordinary course of its business. In particular, no assets
have been acquired or disposed of and no contracts or commitments have been
entered into in the period referred to in the previous sentence, other than
disclosed in the Agreement or any of the Annexes hereto and other than
changes which have occurred in the ordinary course of business.
11. Dividends
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All dividends and other contributions payable by the Company in respect of
the financial year ended on the Balance Sheet Date and all previous
financial years have been duly paid. Since the Balance Sheet Date no
(interim) dividends have been paid by the Company and the Sellers have no
right to receive any (future) dividend or other contribution from the
Company.
12. Legality of the Business of the Company
---------------------------------------
The conduct of the Company's business has not been in violation with any
provisions of any applicable laws, orders, regulations or requirements of
any governmental agency having jurisdiction thereof, including but not
limited to customs and environmental laws. The Company has received no
notice of any violation of such laws, orders, regulations or requirements.
13. Corporate Name; Tradename
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The Company does not carry on business under any name other than its
corporate name.
14. Intellectual property rights
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The Company has not registered any trademarks, nor does it own any patents,
model and design rights.
The Company is the sole and exclusive owner of the copyrights in the works
listed in ANNEX 5.14.1. No license or other right in respect thereof,
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other than under the licence agreements as stated in ANNEX 5.14.2, has been
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granted or agreed to be granted to any third party. The Company has taken
all measures necessary to preserve and maintain the aforementioned
copyrights.
The copyrights held by the Company are sufficient for the carrying out of
its business in the present form. The carrying on of the Company's
business does not infringe upon intellectual and industrial property rights
of any third party and the Company is not liable for the payment of any
royalty or compensation in any form in connection with intellectual and
industrial property rights of any third party; the carrying on of the
business does not render the Company liable for the infringement of
intellectual and industrial property rights of any third party.
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The Company has not, except as set forth in the license agreements listed
in ANNEX 5.14.2, undertaken any obligation with respect to its know-how,
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confidential information or lists of customers and has not communicated any
of the foregoing or permitted any of the foregoing to be communicated to
third parties.
15. Agreements
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The conclusion and performance of the Agreement does not conflict with or
result in the termination of any agreement, nor is there any specific
information that any customer of the Company will terminate its agreement
with the Company as a result of or in connection with the conclusion and
performance of the Agreement.
All license agreements and service agreements entered into by the Company,
whether in writing or orally, are enforceable by the Company.
The Company has fulfilled all of its obligations required to be performed
by it and is not in default under any agreement, written or oral, of
whatsoever nature to which it is a party.
Except as listed in ANNEX 5.15 hereto, the Company has not concluded any
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loan agreements (either as a lender or as a borrower).
16. Insurance
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The Company has concluded and maintains in full force and effect the
insurance policies listed in ANNEX 5.16 hereto, which insurance policies
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adequately cover all risks in respect of which a company similar to the
Company would normally be insured. All premiums on these insurance
policies, which have fallen due on or before the Closing Date, have been
paid and all obligations under these policies have been fulfilled by the
Company. There are no circumstances which may nullify any insurance policy
or which may cause premiums to be increased or the deductibles to be
reduced.
17. Freehold Property
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All assets belonging to the business conducted by the Company are owned by
the Company, except as listed in ANNEX 5.17. The Company has full title to
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the freehold property and all deeds and documents relating thereto are in
the possession of the Company. The freehold property is not subject to any
encumbrances or any other property rights of any nature whatsoever.
18. Leasehold Property
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The leasehold property listed in ANNEX 5.18.1 hereto comprises all real
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property leased by the Company. No other agreements, whether verbal or in
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writing, pertaining to the leasehold property exist. There are no plans,
other than described in ANNEX 5.18.2, for the premature termination of the
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lease agreements.
19. Litigation
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Unless disclosed in ANNEX 5.19 hereto, the Company is not engaged in any
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legal action and there are no proceedings (including arbitration
proceedings) pending and, as far as the Sellers are aware, no
investigations pending or threatened against or affecting the Company,
which might involve any liability not fully covered by insurance or
provided for in the Balance Sheet or which might result in any material
adverse change in the business, operations, or in the conditions, financial
or other, of the Company, nor is there any basis for such legal action,
proceedings or investigations.
20. Employees
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a. ANNEX 5.20 hereto contains a complete list of all employees in the
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service of the Company ("the Employees"), as well as the date on which
each of them entered into their service, the current salary per month,
the function, the date of birth and the conditions of their employment
(including usual bonuses, pension regulation etc.).
b. There is no dispute outstanding with any of the Employees in relation
to their employment in the Company and such disputes are not antici-
pated.
c. The Company has fulfilled all of its obligations in respect of any of
its Employees relating to the period prior to the Closing Date.
d. Apart from the Employees no person can claim to have a (full-time or
part-time) labor agreement (either orally or in writing) with the
Company.
21. Subsidiaries and Branches
-------------------------
The Company does not have any subsidiaries or branches.
22. Tax Matters
-----------
a. The Company has always filed all tax, be it governmental or local, and
social security contributions returns which should have been filed,
including but not limited to those relating to corporation tax, wage
tax and VAT, and has always paid all the taxes (be it governmental or
local) including but not limited to corporation tax, wage tax, VAT and
social
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security contributions which have become due or have been assessed
until the Closing Date.
The Company has no outstanding liabilities for taxes or social
security contributions except as appear from the Balance Sheet or
those that have since the date thereof arisen in the ordinary course
of business.
b. No (additional) assessments have been imposed upon the Company by any
governmental authority in respect of any tax or levy, any grant or
premium received, or any social security contributions regarding the
period preceding the date of this Agreement, nor will any such (addi-
tional) assessment be imposed in respect of taxes and/or social
security contributions related to the period prior to Closing.
23. No material Information Undisclosed
-----------------------------------
The Dutch Parties have prior to the conclusion of the Agreement disclosed
and have furnished to the Purchaser all information which can reasonably be
considered to be of the Purchaser's interest and/or is material for an
accurate appraisal of the business, the assets, the liabilities, and the
affairs of the Company.
24. Investment Representations
--------------------------
With respect to the SS&C Shares to be issued to and acquired by the Dutch
Parties hereunder, each Dutch Party severally represents as follows:
a. The Dutch Party will be acquiring the SS&C Shares to be issued to such
Dutch Party for his or its own account for investment only, and not
with a view to, or for sale in connection with any distribution of
such SS&C Shares in violation of the United States Securities Act of
1933, as amended (the "Securities Act"), or any rule or regulation
under the Securities Act or any state or foreign securities law.
b. The Dutch Party is not a U.S. person, as defined in Regulation S
under the Securities Act, and has signed this Agreement outside the
United States.
c. The Dutch Party understands and acknowledges that (i) the SS&C Shares
have not been registered under the Securities Act and may not be
offered or sold in the United States or to, or for the account of
benefit of, any U.S. person unless such securities are registered
under the Securities Act or such offer or sale is made pursuant to an
exemption from the registration requirements of the Securities Act,
and (ii) the SS&C Shares are being distributed by the Purchaser
pursuant to the terms of Regulation S, which permits securities to be
sold to non-U.S.
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persons in "offshore transactions" (as defined in Regulation S),
subject to certain terms and conditions.
ARTICLE 6. CONSEQUENCES OF BREACH OF REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------------------
6.1 The Sellers undertake to hold the Purchaser and the Company harmless
against any claim from any third party the absence of which is warranted
pursuant to Article 5 of this Agreement.
6.2 In the event that it should be found that any matter which is the subject
of the Representations and Warranties is not as warranted or represented,
the Sellers shall, in accordance with their respective percentage in the
share capital of the Company prior to the Closing, compensate the Purchaser
and/or the Company (whichever shall be deemed more appropriate by the
Purchaser) on first demand for any damages, fees and expenses (including
but not limited to auditing costs incurred in investigating any matter
which the Purchaser may reasonably suspect to give rise to a claim under
this paragraph, as well as all costs of legal advice) suffered or incurred
by the Purchaser and/or the Company by reason of or in connection with such
breach of the Representations and Warranties. Claims on the basis of the
Representations and Warranties can only be made:
(i) with respect to the Representations and Warranties regarding taxes
and/or social security contributions: within six months after the
relevant statutory period has expired within which the competent
authorities may claim payment from the Company;
(ii) with respect to all other Representations and Warranties: within two
years after the Closing Date.
6.3 The Purchaser will notify the Dutch Parties within 30 days if any third
party files a claim the absence of which has been warranted pursuant to
Article 5 of this Agreement and will furthermore take reasonable steps to
defend itself or have the Company defended against such claims.
6.4 The aggregate liability of the Sellers shall not exceed the Purchase Price,
whereby it is agreed and understood that the Sellers are not obliged to
indemnify the Purchaser in respect of a possible reduction of the value of
the SS&C Shares, but are only obliged to transfer the SS&C Shares to the
Purchaser.
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ARTICLE 7. NON-COMPETITION AND OTHER LIMITATIONS
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7.1 Each Dutch Party hereby agrees with the Purchaser that it will not without
the prior written consent of the Purchaser for a period of 2 (two) years
from the date hereof, in the Netherlands, as managing director, shareholder
or other wise, either directly or indirectly, be engaged in or concerned
with any business which competes in any way with the business of the
Company and/or any of its affiliates or subsidiaries.
7.2 In the event that any Dutch Party infringes any of the provisions of
paragraph 1 of this Article 7, it shall without any prior notice or Court
action forfeit for the benefit of the Purchaser an immediately payable
penalty amounting to NLG 1,000,000.00 (one million Netherlands guilders)
for each infringement and to NLG 25,000.00 (twenty five thousand
Netherlands guilders) for each day such infringement will continue, without
any damage or loss requiring to be proven and without prejudice to the
right of the Purchaser to claim additional damages if there are grounds for
so doing.
ARTICLE 8. TRADENAME
---------------------
Neither the Dutch Parties nor any company which is an affiliate or a subsidiary
of any Dutch Party shall after the Closing Date use the tradenames "Xxxxx" or
"Xxxxx Systems" or any tradename which deviates to such small extent from such
trade names that confusion among the public may be expected.
ARTICLE 9. CONFIDENTIALITY
---------------------------
9.1 The Dutch Parties undertake not to, at any time subsequent to this
Agreement, divulge or communicate to any company, person or entity (other
than to the Purchaser and the Company or to any of their officers or
employees who need to acquire such knowledge in the performance of their
duties or as directed or approved by the Purchaser in writing) any
confidential information or information of an apparently confidential
nature whatsoever concerning the business, affairs, accounts, dealings,
transactions, customers, suppliers or business relations of the Purchaser
insofar as such information has come to the knowledge of the Dutch Parties
during the preparation of this Agreement, or of the Company, except:
(a) to the extent required by law or any competent authority after
consultation with the Purchaser;
(b) to their professional advisers under condition of confidentiality and
only to the extent necessary for any lawful purpose; or
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(c) to the extent that such information is at the date hereof or hereafter
becomes public knowledge otherwise than through improper disclosure by
any person.
9.2 The Purchaser undertakes not to, at any time subsequent to this Agreement,
divulge or communicate to any company, person or entity (other than to the
Dutch Parties and the Company or to any of their officers or employees who
need to acquire such knowledge in the performance of their duties or as
directed or approved by the Dutch Parties in writing) any confidential
information or information of an apparently confidential nature whatsoever
concerning the business, affairs, accounts, dealings, transactions,
customers, suppliers or business relations of the Dutch Parties insofar as
such information has come to the knowledge of the Purchaser during the
preparation of this Agreement, except:
(a) to the extent required by law or any competent authority after
consulta tion with the Dutch Parties;
(b) to their professional advisers under condition of confidentiality and
only to the extent necessary for any lawful purpose; or
(c) to the extent that such information is at the date hereof or hereafter
becomes public knowledge otherwise than through improper disclosure by
any person.
ARTICLE 10. RESTRICTIONS ON TRANSFER OF SS&C SHARES
----------------------------------------------------
10.1 Restrictions on Transfer of SS&C Shares
a. Except as otherwise provided in subsection 10.1 (b) below, each Dutch
Party shall not, for a period extending from the date of issuance of
the SS&C Shares to the third anniversary of the date of such issuance
(the "Restricted Period"), sell, assign, transfer, pledge, mortgage,
enter into any hedging transaction or otherwise dispose of, by
operation of law or otherwise (collectively referred to as
"transfer"), any of the SS&C Shares, or any interest therein. At any
time after the Restricted Period, at the request of the respective
Dutch Parties, the Purchaser, at its own expense, shall promptly
remove or cause to be removed from the SS&C Shares the restrictive
legends described in Article 10.1 (f) below. Prior to the removal of
such legends, the SS&C Shares will be listed for trading on the Nasdaq
National Market.
b. Notwithstanding the foregoing, each Dutch Party may transfer SS&C
Shares to or for the benefit of any controlling stockholder of such
Dutch Party, provided that such SS&C Shares shall remain subject to
this
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Agreement (including without limitation the restrictions on transfer
set forth in this Article 10) and such permitted transferee shall, as
a condition to such transfer, deliver to the Purchaser a written
instrument confirming such transferee shall be bound by all of the
terms and conditions of this Agreement.
c. The Purchaser shall not be required (i) to transfer on its books any
of the SS&C Shares which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or
(ii) to treat as owner of such SS&C Shares or to pay dividends to any
transferee to whom such SS&C Shares shall have been so sold or
transferred.
d. If from time to time during the Restricted Period there is any stock
split-up, stock dividend, stock distribution or other reclassification
of the common stock of the Purchaser, any and all new, substituted or
additional securities to which a Dutch Party is entitled by reason
of its ownership of the SS&C Shares shall be immediately subject to
the restrictions on transfer and other provisions of this Agreement in
the same manner and to the same extent as the SS&C Shares.
e. If the SS&C Shares are converted into or exchanged for, or
stockholders of the Purchaser receive by reason of any distribution in
total or partial liquidation, securities of another corporation, or
other property (including cash), pursuant to any merger of the
Purchaser or acquisition of its assets, then the rights of the
Purchaser under this Agreement shall inure to the benefit of the
Purchaser's successor and this Agreement shall apply to the securities
or other property received upon such conversion, exchange or
distribution in the same manner and to the same extent as the SS&C
Shares.
f. All certificates representing SS&C Shares shall have affixed thereto
legends in substantially the following form:
"The shares of common stock represented by this certificate are
subject to restrictions on transfer set forth in a certain Share
Purchase Agreement between the corporation and the registered
owner of the shares (or his predecessor in interest), and such
Agreement is available for inspections without charge at the
office of the Secretary of the corporation."
and
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"The shares of Common Stock represented by this certificate may
not be offered, sold or transferred except in accordance with the
provisions of Regulation S under the Securities Act of 1933, as
amended."
ARTICLE 11. ENTIRE AGREEMENT
-----------------------------
This Agreement sets out the entire agreement between the parties and supersedes
any and all prior agreements between the parties, including the Letter of Intent
dated 23 August 1997.
ARTICLE 12. NO WAIVER OF CLAIM
-------------------------------
No failure of the Purchaser to take any action in the event of breach of any of
the provisions of this Agreement or in the event of breach of any of the
Representations and Warranties shall be considered to constitute a waiver.
ARTICLE 13. COSTS
------------------
Each party shall bear its own costs and expenses in connection with this
Agreement. The costs for the preparation of the deed of transfer will be borne
by the Sellers and the Purchaser equally.
ARTICLE 14. ANNEXES
--------------------
The Annexes to this Agreement form an integral part of this Agreement. Any
reference to this Agreement includes references to the said Annexes.
ARTICLE 15. DESCRIPTION HEADINGS
---------------------------------
Descriptive headings used in this Agreement are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
ARTICLE 16. COUNTERPARTS
-------------------------
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same Agreement.
ARTICLE 17. ASSIGNABILITY
--------------------------
This Agreement may not be assigned by any party without the prior written
consent of the other parties.
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ARTICLE 18. INVALID PROVISIONS
-------------------------------
In the event that any of the provisions contained herein shall be deemed invalid
or unenforceable, then the remaining provisions shall be construed as if such
invalid or unenforceable provisions were not contained herein; and such invalid
or unenforceable provision shall then be deemed to have been replaced by a
provision which as closely as possible meets the intention of the parties when
inserting the original provision.
ARTICLE 19. GUARANTEE BY HILHORST AND XXXXXXX
----------------------------------------------
Hilhorst hereby unconditionally guarantees all obligations of Seller I to make
indemnification payments to the Purchaser as a consequence of the
Representations and Warranties of the Sellers in respect of taxes and social
security contributions not being correct. Xxxxxxx hereby unconditionally
guarantees all obligations of Seller II to make indemnification payments to the
Purchaser as a consequence of the Representations and Warranties of the
Sellers in respect of taxes and social security contributions not being
correct.
ARTICLE 20. APPROVAL PURSUANT TO SECTION 1:88 NETHERLANDS CIVIL CODE
---------------------------------------------------------------------
Pursuant to Section 1:88 of the Netherlands Civil Code, the spouse of Xxxxxxx,
Mrs. M.P.H.J.G. Xxxxxxx-Xxxxxxx shall sign this Agreement as evidence that she
approves of the representations and warranties and other covenants and
guarantees made by Xxxxxxx.
ARTICLE 21. PLEDGE OF SS&C SHARES
----------------------------------
(a) In order to provide the Purchaser with more security in respect of the
obligations of the Sellers under this Agreement, each of the Sellers hereby
grants to the Purchaser a security interest in 50% of the SS&C Shares to be
received by such Seller, the certificates for which SS&C Shares, together with
stock transfer powers executed in blank, the Sellers will deliver to the
Purchaser immediately upon receipt thereof (collectively, the "Collateral").
The security interests in the Collateral granted hereby secure payment and
performance of all obligations of the Sellers under this Agreement. While a
Seller is not in default in the performance of its obligations under this
Agreement, such Seller may vote its SS&C Shares pledged as Collateral and may
receive cash dividends and other distributions payable with respect to the
Collateral; provided, however, that such Seller shall immediately inform the
Purchaser of the receipt of any such dividend, payment or other distribution and
shall hold the amount thereof in trust for the Purchaser unless and until the
Purchaser shall in writing release the Seller from such trust. Each Seller
shall cause all non-cash dividends and distributions with respect to the
Collateral to be distrib-
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uted directly to the Purchaser, to be held by the Purchaser as additional
Collateral, and if such distribution is made to the Seller it shall receive such
distributions in trust for the Purchaser and shall immediately transfer them to
the Purchaser.
(b) Upon the occurrence of any default by a Seller in the performance of
its obligations hereunder, the Purchaser may, at its sole discretion, (i) sell,
assign or deliver all or any part of the Collateral of such Seller at any public
or private sale, without any advertisement, presentment, demand or performance,
protest, notice of protest, notice of dishonour or any other notice; (ii)
exercise the right to vote, the right to receive cash dividends and other
distributions and all other rights with respect to such Collateral as if the
Purchaser were the absolute owner thereof; (iii) take title to such Collateral
and (iv) exercise any and all other rights available to a secured party under
the United States Uniform Commercial Code and other applicable laws. The
security interests hereby shall terminate on the second anniversary of the
Closing Date.
(c) Furthermore, the Sellers agree that any further payment to be made
under Article 2.1 (c) may be set off against any claim the Purchaser may have
against the Sellers.
ARTICLE 22. GOVERNING LAW
--------------------------
This Agreement shall be construed in accordance with and governed by the laws of
the Netherlands.
ARTICLE 23. COMPETENT COURT
----------------------------
Any disputes arising in connection with this Agreement or further agreements
resulting herefrom shall be exclusively brought before the competent court of
Amsterdam, the Netherlands.
IN WITNESS WHEREOF the parties hereto have executed this Agreement in three
original copies in Amsterdam on 14 November 1997.
For and on behalf of For and on behalf of
SS&C TECHNOLOGIES, INC.: X.X. XXXXXXXX HOLDING B.V.:
/s/ Xxxxxxx X. Xxxxx /s/ X.X. Xxxxxxxx
---------------------------- ----------------------------------
by: Xxxxxxx X. Xxxxx by: X.X. Xxxxxxxx
title: Chairman title: Director
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For and on behalf of
LEBAM BEHEER B.V.: X.X. XXXXXXXX:
/s/ X.X. Xxxxxxx /s/ X.X. Xxxxxxxx
------------------------- -----------------------------
by: X.X. Xxxxxxx
title: Director
X.X. XXXXXXX:
/s/ X.X. Xxxxxxx
-------------------------
[Handwritten by Mrs. M.P.H.J.G. Xxxxxxx-Xxxxxxx: "As evidence for my approval"]
MRS. M.P.H.J.G. XXXXXXX-XXXXXXX:
/s/ M.P.H.J.G. Xxxxxxx-Xxxxxxx
-------------------------------
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