EXHIBIT 10.9
SS&C TECHNOLOGIES, INC. MANAGEMENT RIGHTS AGREEMENT
THIS MANAGEMENT RIGHTS AGREEMENT (this "AGREEMENT") is effective as of
November 23, 2005, by and among Carlyle Partners IV, L.P., a Delaware limited
partnership ("XX XX"), XX XX Coinvestment, L.P., a Delaware limited partnership
("COINVESTMENT"), Sunshine Acquisition Corporation, a Delaware corporation
("ACQUISITION CORP.") and SS&C Technologies, Inc. a Delaware corporation (the
"Company").
RECITALS
WHEREAS, the Company is wholly owned by Acquisition Corp.;
WHEREAS, XX XX and Coinvestment together own a majority of the equity
interests of Acquisition Corp.;
WHEREAS, Acquisition Corp. and the Company wish to provide XX XX with
certain rights with regard to the equity interests of Acquisition Corp. held by
XX XX and to set forth their understanding with regard to the operations,
control and management of the Acquisition Corp. and the Company; and
WHEREAS, XX XX has requested to be granted, and Acquisition Corp. and the
Company have agreed to grant to XX XX, the right to review the Books and Records
(as defined below) of Acquisition Corp. and the Company and the Books and
Records of their subsidiaries and to consult with management of the Acquisition
and the Company and their respective subsidiaries regarding operations.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
a. "BENEFICIAL OWNERSHIP" means the power, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, to (i) vote, or to direct the voting of, a security; and (ii)
dispose, or to direct the disposition of, such security. "Beneficially Owns"
shall mean having Beneficial Ownership.
b. "ACQUISITION BOARD" means the board of directors of
Acquisition Corp.
c. "COMPANY BOARD" means the board of directors of the Company.
d. "VOTING SECURITIES" shall mean with respect to any entity, all
debt or equity securities of such entity entitled to vote for the board of
directors, board of managers or other similar body elected or appointed to
manage the business of such entity.
2. Designation and Election of Directors.
a. During the term of this Agreement, XX XX shall be entitled to
nominate one director to serve as a member of the Acquisition Board (the
"ACQUISITION NOMINEE"). Additionally, during the term of this Agreement, XX XX
shall have the right to appoint one non-voting board observer to the Company
Board, who will be entitled to attend all meetings of the Company Board and
receive all copies of all materials provided to the Company Board (including,
without limitation, minutes of previous board meetings of such Company Board),
provided that such observer shall have no voting rights with respect to any
actions taken or elected not to be taken by the Company Board (the "COMPANY
BOARD OBSERVER"). The Company reserves the right to withhold any information and
to exclude the Company Board Observer from any meeting or portion thereof if
access to such information or attendance at such meeting would adversely affect
the attorney-client privilege between the Company and its counsel or result in a
conflict of interest. For the avoidance of doubt, no Company Board Observer
shall have voting rights or fiduciary obligations to the Company or the
stockholders but each shall be bound by the same confidentiality obligations as
the members of the Company Board.
b. XX XX hereby designates Xxxxxxxx X. Xxxxx XX as the
Acquisition Nominee and as the Company Board Observer.
c. If the Acquisition Nominee or the Company Board Observer shall
be unable or unwilling to serve prior to his or her election or appointment to
the applicable Acquisition Board or Company Board, XX XX shall be entitled to
nominate a replacement who shall then be the respective Acquisition Nominee or
Company Board Observer for the purposes of this Agreement. If, following
election or appointment to the Acquisition Board or the Company Board, the
Acquisition Nominee or the Company Board Observer shall resign or be removed for
cause or be unable to serve by reason of death or disability, XX XX shall,
within 30 days of such event, notify the respective Acquisition Board or the
Company Board in writing of a replacement, and all parties hereto shall take
such steps as may be necessary to elect or appoint such replacement to the
Acquisition Board or the Company Board to fill the unexpired term of the
respective Acquisition Nominee or Company Board Observer.
d. Each party hereto agrees not to take any action without the
written consent of XX XX, which consent may be given or withheld in CP IV's sole
discretion, to remove, whether or not for cause, the Acquisition Nominee from
the Acquisition Board following his or her election thereto, including, without
limitation, by decreasing the size of the Acquisition Board such that there are
an insufficient number of directors on the Acquisition Board to permit XX XX to
exercise its rights to nominate the Acquisition Nominee to the Acquisition Board
pursuant to this Section 2.
3. Information.
a. Acquisition Corp. and the Company shall keep proper books of
record and account in which full and correct entries shall be made of all
financial transactions and the assets and business of Acquisition Corp. and the
Company or their subsidiaries (as the case may be) in accordance with GAAP, to
the extent GAAP is applicable. Acquisition Corp.
and the Company shall provide XX XX with reasonable access to the books and
records of Acquisition Corp. and the Company and their subsidiaries, including
without limitation, financial data (including projections) and operating data
covering each of such entities, their businesses, operation and financial
performance (the "BOOKS AND RECORDS"). Acquisition Corp. and the Company shall,
and shall cause their subsidiaries to, provide XX XX with reasonable access to
all Books and Records during regular business hours and allow XX XX to make
copies and abstracts thereof.
b. XX XX shall have the right to consult from time to time with
management of Acquisition Corp. and the Company and their subsidiaries at their
respective place of business regarding operating and financial matters.
4. Miscellaneous.
a. Each party hereto agrees to execute and deliver such documents
and take such further actions as may be necessary or desirable to effect the
purposes and objectives of this Agreement.
b. This Agreement may not be amended or modified except by a
written instrument signed by each of the parties hereto. The waiver by any party
of such party's rights under this Agreement in any particular instance or
instances, whether intentional or otherwise, shall not be considered as a
continuing waiver which would prevent subsequent enforcement of such rights or
of any other rights.
c. This Agreement with respect to the Company shall automatically
terminate when Acquisition Corp. and all of its affiliates collectively no
longer Beneficially Own any Voting Securities of the Company and this Agreement
with respect to Acquisition Corp. shall automatically terminate when XX XX and
all of its affiliates collectively no longer Beneficially Own any Voting
Securities of Acquisition Corp.
d. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if sent by recognized
overnight delivery service, return receipt requested, to the following parties
at the following addresses or to such other parties and at such other addresses
as shall be specified by like notices:
if to XX XX at:
Carlyle Partners IV, L.P.
c/o The Carlyle Group
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx XX
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxx Xxxxxx, Esq.
if to Acquisition Corp. or the Company at their respective
registered office.
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxx Xxxxxx, Esq.
Notice so given shall be deemed to be given and received on the second business
day after sending by recognized overnight delivery service, return receipt
requested.
e. The parties acknowledge and agree that the breach of the
provisions of this Agreement by any party could not be adequately compensated
with monetary damages, and the parties hereto agree, accordingly, that
injunctive relief and specific performance shall be appropriate remedies to
enforce the provisions of this Agreement and waive any claim or defense that
there is an adequate remedy at law for such breach; provided, however, that
nothing herein shall limit the remedies herein, legal or equitable, otherwise
available and all remedies herein are in addition to any remedies available at
law or otherwise.
f. The aforementioned rights are intended to satisfy the
requirement of management rights for purposes of qualifying CP IV's investment
through Acquisition Corp. in the Company as a "venture capital investment" for
purposes of the Department of Labor "plan assets" regulation, 29 C.F.R. Section
2510.3-101. In the event the aforementioned rights are not satisfactory for such
purposes, the parties will reasonably cooperate in good faith to agree upon
mutually satisfactory management rights that will satisfy such regulations.
g. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
h. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto, their heirs, administrators, executors, successors and
assigns. XX XX may assign its rights and interest in this Agreement to any of
its affiliates without need for the consent of any other party hereto, and each
of such other parties agrees that it will acknowledge such an assignment upon
the request by XX XX.
i. The headings of the sections and paragraphs of this Agreement
have been inserted for convenience of reference only and do not constitute a
part of this Agreement.
j. The parties agree that this Agreement shall be governed by and
construed in accordance with the laws of the state of Delaware, excluding any
laws thereof which would direct application of law of another jurisdiction.
k. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, with the same effect as if
each party had signed the same document. All such counterparts shall be deemed
an original, shall be construed together and shall constitute one and the same
instrument.
l. When the context requires, the gender of all words used herein
shall include the masculine, feminine and neuter and the number of all words
shall include the singular and plural.
[signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
CARLYLE PARTNERS IV, L.P.
By: TC Group IV, L.P.,
its general partner
By: TC Group IV, L.L.C.,
its general partner
By: TC Group, L.L.C.,
its sole 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.
By: TC Group IV, L.P.,
its general partner
By: TC Group IV, L.L.C.,
its general partner
By: TC Group, L.L.C.,
its sole member
By: TCG Holdings, L.L.C.,
its managing member
By: /s/ Xxxxxxxx X. Xxxxx XX
------------------------------------
Name: Xxxxxxxx X. Xxxxx XX
Title: Managing Director
Management Rights Agreement
SUNSHINE ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SS&C TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Management Rights Agreement
