CONTRIBUTION AND SUBSCRIPTION AGREEMENT
Exhibit (d) (3)
This CONTRIBUTION AND SUBSCRIPTION AGREEMENT (the “Agreement”), dated as of July 28,
2005, is entered into by and among Xxxxxxx X. Xxxxx, an individual (“Investor”) and
Sunshine Acquisition Corporation, a Delaware corporation (“Parent”).
RECITALS
WHEREAS, Investor is currently a stockholder of SS&C Technologies, Inc., a Delaware
corporation (the “Company”), and is the owner of 5,872,020 shares of common stock, par
value $0.01 per share, of the Company (the “Company Common Stock”);
WHEREAS, in connection with that certain Agreement and Plan of Merger, dated as of July 28,
2005 (the “Merger Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Merger Agreement), by and among the Company, Parent
and Sunshine Merger Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
(“Merger Co”), Merger Co shall merge with and into the Company with the Company as the
surviving corporation (the “Merger”);
WHEREAS, subject to the terms and conditions of this Agreement, Investor desires, prior to the
Merger, to contribute (the “Contribution”) to Parent 4,026,845 shares of Company Common
Stock (the “Rollover Shares”) in exchange for 150,000 newly issued shares (the
“Exchange Shares”) of common stock, par value $0.01 per share, of Parent (the “Parent
Common Stock”), and Parent desires to issue to Investor the Exchange Shares in exchange for
Investor’s contribution to Parent of the Rollover Shares;
WHEREAS, on the terms and subject to the conditions set forth in the Equity Commitment Letter,
dated as of the date hereof, by and among Carlyle Partners IV, L.P. and XX XX Co-Investment, L.P.
(collectively, the “Carlyle Fund Entities”) and Parent, simultaneously with the
consummation of the Contribution, the Carlyle Fund Entities and/or their designees (together with
the Carlyle Fund Entities, the “Carlyle Funds”) will capitalize Parent with $380,000,000 in
cash (or such lesser amount as may be required by the Merger Agreement or such greater amount as
shall be determined to be necessary by Parent and the Carlyle Funds to consummate the Merger, the
“Cash Equity Capitalization”), and Parent will issue to the Carlyle Funds, in the
aggregate, a number of newly issued shares of Parent Common Stock equal to (x) the Cash Equity
Capitalization, divided by (y) $1,000 (the “Carlyle Shares”) as consideration for
the Cash Equity Capitalization;
WHEREAS, for United States federal income tax purposes, it is intended that the contribution
by Investor of the Rollover Shares to Parent in exchange for newly issued shares of capital stock
of Parent, taken together with the Cash Equity Capitalization, will qualify as a transaction
described in Section 351(a) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, in connection with the consummation of the transactions contemplated by this
Agreement and the Merger Agreement, Parent, Investor and the Carlyle Funds will enter into a
Stockholders Agreement substantially in the form attached as Exhibit A hereto (the
“Stockholders Agreement”) and a Registration Rights Agreement substantially in the form
attached as Exhibit B hereto (the “Registration Rights Agreement”).
NOW, THEREFORE, in order to implement the foregoing and 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:
AGREEMENT
Section 1. Contribution of the Rollover Shares.
1.1. Contribution of the Rollover Shares in Exchange for the Exchange Shares. On the
terms and conditions set forth herein, (i) Investor agrees, at the Closing and simultaneously with
the consummation of the Cash Equity Capitalization, to contribute to Parent the Rollover Shares,
free and clear of any and 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 such Rollover Shares (“Liens”), in exchange for the issuance by Parent to
Investor of the Exchange Shares and (ii) Parent agrees, at the Closing, to issue to Investor the
Exchange Shares in exchange for the contribution by Investor to Parent of the Rollover Shares.
1.2. Closing. The closing (the “Closing”) of the Contribution shall occur
immediately prior to the closing of the Merger. The Closing shall take place at the offices of
Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 or such other place as agreed by the
parties.
1.3. Failure to Consummate the Merger. In the event that after the Contribution and
exchange of the Exchange Shares for the Rollover Shares, as set forth in Section 1.1, the Merger
fails to be consummated for any reason whatsoever and the Merger Agreement is terminated, the
parties hereto agree that concurrently with the termination of the Merger Agreement, regardless of
the price at which the shares of Company Common Stock are quoted at that time on the Nasdaq Stock
Exchange or any other national securities exchange on which the common stock of the Company is
listed, Parent shall return to Investor the Rollover Shares and Investor shall return to Parent the
Exchange Shares issued to Investor. In such event, Investor shall have no claim against Parent
under this Agreement other than the right to receive the Rollover Shares upon return of the
Exchange Shares, and any right that Investor would have as a stockholder of the Company, and
Investor shall have no further obligations to Parent under this Agreement.
1.4 Conditions to Closing. The Closing of the Contribution shall be subject to the
satisfaction of the following conditions unless waived in writing by Parent and Investor (in the
case of clauses (a), (b), and (e)) or by Parent (in the case of clause (c)) or by Investor (in the
case of clause (d)):
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(a) No Law or Orders. No law shall have been enacted, entered, issued or promulgated
(and remain in effect) by any governmental authority which prohibits consummation of the
transactions contemplated hereby.
(b) Merger Agreement Conditions. The conditions set forth in Article VII of the
Merger Agreement shall have been satisfied or waived and the parties to the Merger Agreement shall
have indicated that they intend to consummate the Merger immediately following consummation of the
Contribution.
(c) Representations, Warranties and Covenants of Investor. All representations and
warranties made in this Agreement by Investor shall be true and correct in all respects on the date
when made and on and as of the date of the Closing (the “Closing Date”) with the same
effect as if made on and as of the Closing Date, and Investor shall have performed or complied in
all material respects with all covenants and agreements to be performed by Investor under this
Agreement.
(d) Representations, Warranties and Covenants of Parent. All representations and
warranties made in this Agreement by Parent shall be true and correct in all respects on the date
when made and on and as of the Closing Date with the same effect as if made on and as of the
Closing Date, and Parent shall have performed or complied in all material respects with all
covenants and agreements to be performed by Parent under this Agreement.
(e) HSR. All waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”)
applicable to the Contributions and the Cash Equity Capitalization shall have expired or been
terminated.
1.5. Parent Deliveries. At the Closing, Parent shall deliver to Investor the
following:
(a) stock certificates representing the Exchange Shares;
(b) a certificate of Parent confirming the fulfillment of the conditions set forth in Section
1.4(d);
(c) the Stockholders Agreement duly executed by Parent and the other parties thereto (other
than Investor); and
(d) a Registration Rights Agreement duly executed by Parent and the other parties thereto
(other than Investor).
1.6. Investor Deliveries. At the Closing, Investor shall deliver to Parent the
following:
(a) stock certificates evidencing the Rollover Shares, endorsed in blank (or together with
duly executed stock powers in form and substance reasonably satisfactory to Parent);
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(b) a certificate of Investor confirming the fulfillment of the conditions set forth in
Section 1.4(c);
(c) the Stockholders Agreement duly executed by Investor; and
(d) the Registration Rights Agreement duly executed by Investor.
Section 2. Representations and Warranties of Parent. Parent hereby represents and
warrants to Investor as follows:
2.1. Organization. Parent is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, having full corporate power and authority to
own its properties and to carry on its business as conducted.
2.2. Authority. Parent has the requisite corporate power and authority to enter into
and deliver this Agreement, perform its obligations herein, and consummate the transactions
contemplated hereby. Parent has duly executed and delivered this Agreement and, assuming the due
authorization, execution and delivery by Investor, this Agreement is a valid, legal and binding
obligation of Parent, enforceable against Parent 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 at equity).
2.3 Shares Duly Authorized; Capitalization. All of the shares of Parent Common Stock
to be issued to Investor under this Agreement, when issued and delivered in accordance with the
terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable.
The authorized capital stock of Parent consists of 600,000 shares of Parent Common Stock of which,
after giving effect to the Contribution and the Cash Equity Capitalization, a number of shares
equal to the sum of the Rollover Shares and the Carlyle Shares will be the only issued and
outstanding shares of capital stock.
2.4 No Conflicts; No Consents. The execution and delivery of this Agreement by
Parent, the performance by Parent of its obligations hereunder, and the consummation by Parent of
the transactions contemplated thereby do not and will not (a) conflict Parent’s certificate of
incorporation or bylaws, (b) materially violate or materially conflict with any Law applicable to
Parent or any of Parent’s assets or properties or (c) violate or conflict with in any material
respect, result in any material breach of, or constitute a material default (or event which with
the giving of notice or lapse of time, or both, would become a default) under, any agreement to
which Parent is a party or by which any of its assets or properties is bound. Except for
compliance with the applicable requirements of the HSR Act, no consent, approval, authorization,
license, order or permit of, or declaration, filing or registration with, or notification to, any
Governmental Authority, or any other Person, on the part of Parent is required to be made or
obtained in connection with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby other than any filings as may be required
under applicable state “Blue Sky” laws.
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2.5 Charter and Bylaws. Parent has provided Investor with true and correct copies of
the certificate of incorporation and bylaws of Parent.
2.6 Operations of Parent. Parent was formed solely for the purpose of entering into,
and engaging in the transactions contemplated by, this Agreement and the Merger Agreement and has
no assets or liabilities other than its rights and obligations under or in respect of this
Agreement, the Merger Agreement, the Commitment Letter, the Equity Funding Letter, that certain
engagement letter, dated as of the date hereof, by and between Parent and Wachovia Capital Markets,
LLC, and the fee letters and engagement letters entered into in connection with the Commitment
Letter.
2.7 No Litigation. As of the date of this Agreement, there is no Action pending or,
to the knowledge of the officers of Parent, threatened, against Parent or any of its Affiliates
before any Governmental Authority that would or seeks to materially delay or prevent the
consummation of the transactions contemplated hereby. As of the date of this Agreement, neither
Parent nor any of its Affiliates is subject to any continuing order of, consent decree, settlement
agreement or other similar written agreement with, or, to the knowledge of the officers of Parent,
continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction,
decree, determination or award of any Governmental Authority that would or seeks to materially
delay or prevent the consummation of the transactions contemplated hereby.
2.8 Financing. Parent has delivered to the Investor true and complete copies of (a)
an executed commitment letter from Carlyle Partners IV, L.P. and XX XX Coinvestment, L.P. to
provide equity financing in an aggregate amount set forth therein (the “Equity Funding
Letter”) and (b) an executed commitment letter (the “Commitment Letter”) from JPMorgan
Chase Bank, N.A., X.X. Xxxxxx Securities Inc., Wachovia Bank, National Association, Wachovia
Investment Holdings, LLC, Wachovia Capital Markets, LLC, Bank of America, N.A., Banc of America
Bridge LLC and Banc of America Securities LLC to provide debt financing in an aggregate amount set
forth therein (being collectively referred to as the “Debt Financing,” and together with
the financing referred to in clause (a) being collectively referred to as the “Financing”).
As of the date of this Agreement, neither the Equity Funding Letter or the Commitment Letter has
been amended or modified except as permitted by the Merger Agreement, and the respective
commitments contained in the Equity Funding Letter and, to the knowledge of Parent as of the date
of this Agreement, the Commitment Letter, have not been withdrawn or rescinded in any respect. The
Equity Funding Letter and, to the knowledge of Parent as of the date of this Agreement, the
Commitment Letter, are in full force and effect. There are no conditions precedent or other
contingencies related to the funding of the full amount of the Financing, other than as set forth
in or contemplated by the Equity Funding Letter or the Commitment Letter. The aggregate proceeds
contemplated by the Equity Funding Letter and the Commitment Letter will be sufficient for Merger
Co to pay the aggregate Merger Consideration and any other repayment or refinancing of debt
contemplated by the Commitment Letter and to pay all related fees and expenses. Notwithstanding
the foregoing, the aggregate liability of Parent for any liability under the Merger Agreement and
for any breach of the representation set forth in this Section 2.8 shall not exceed the Parent
Termination Fee.
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Section 3. Representations and Warranties of Investor. Investor hereby represents and
warrants to Parent as follows:
3.1. Organization. Investor is of legal age, competent to enter into a contractual
obligation, and a citizen of the United States of America. The principal place of business or
principal residence of Investor is as shown on Section 9(b) of this Agreement.
3.2. Ownership of the Rollover Shares. Other than restrictions created by the Voting
Agreement, dated as of July 28, 2005, by and between Investor, Parent, Merger Co and the Company
(the “Voting Agreement”), Investor is the record and beneficial owner of the Rollover
Shares, free and clear of all Liens. Neither Investor nor any of his affiliates is a party to, or
bound by, any contract, arrangement, agreement, instrument or order (other than this Agreement and
the Voting Agreement) (i) relating to the sale, repurchase, assignment or other transfer of any
capital stock or equity securities of the Company, (ii) relating to the receipt of dividends, proxy
rights or voting rights of any capital stock or other equity securities of the Company or (iii)
relating to the rights to registration under the Securities Act of 1933, as amended (the
“Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), of any capital stock or equity securities of the Company.
3.3. Authority. Investor has the requisite power and authority to enter into and
deliver this Agreement, perform his obligations herein, and consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by Investor and, assuming
the due authorization, execution and delivery by Parent, this Agreement is a valid, legal and
binding obligation of Investor, enforceable against Investor 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 at equity).
3.4. Investor Intent. Investor is acquiring the Exchange Shares for Investor’s own
account as principal, for investment purposes only, not for any other person or entity and not for
the purposes of resale or distribution. Investor is not subscribing for the Exchange Shares from
Parent in a fiduciary capacity.
3.5. Financial Status. Investor is an “accredited investor” as such term is defined
in Regulation D promulgated under the Securities Act. Investor is able to bear the economic risk
of an investment in shares of Parent Common Stock for an indefinite period of time, has adequate
means of providing for his current financial needs and personal contingencies, has no need for
liquidity in the investment in shares of Parent Common Stock, understands that Investor may not be
able to liquidate his investment in Parent in an emergency, if at all, and can afford a complete
loss of the investment.
3.6. No Other Representation. Investor has received no other representations or
warranties from Parent or any other person acting on behalf of the Company or Parent, other than
those contained in this Agreement.
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3.7 No Conflicts; No Consents. The execution and delivery of this Agreement by
Investor, the performance by Investor of his obligations hereunder and the consummation by Investor
of the transactions contemplated hereby do not and will not (a) materially violate or materially
conflict with any Law applicable to Investor or any of Investor’s assets or properties or (b)
violate or conflict with in any material respect, result in any material breach of, or constitute a
material default (or event which with the giving of notice or lapse of time, or both, would become
a default) under, any agreement to which Investor is a party or by which any of his assets or
properties is bound. Except for compliance with the applicable requirements of the HSR Act, no
consent, approval, authorization, license, order or permit of, or declaration, filing or
registration with, or notification to, any Governmental Authority, or any other Person, is required
to be made or obtained by Investor in connection with the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated thereby.
3.8 No Litigation. As of the date of this Agreement, there is no Action pending or,
to Investor’s knowledge, threatened, against Investor before any Governmental Authority that would
or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
As of the date of this Agreement, Investor is not subject to any continuing order of, consent
decree, settlement agreement or other similar written agreement with, or, to Investor’s knowledge,
continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction,
decree, determination or award of any Governmental Authority that would or seeks to materially
delay or prevent the consummation of the transactions contemplated hereby.
Section 4. Agreements and Acknowledgements of Investor. Investor hereby agrees and
acknowledges to Parent as follows:
4.1. No Registration. Investor understands and agrees that the Exchange Shares are
being acquired by Investor in a transaction not involving any public offering within the meaning of
the Securities Act, in reliance on an exemption therefrom. Investor understands that the Exchange
Shares have not been, and, except as set forth in the Registration Rights Agreement, will not be,
approved or disapproved by the Securities and Exchange Commission or by any other federal or state
agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to
Investor by Parent. No federal or state governmental agency has passed on or made any
recommendation or endorsement of the Exchange Shares or an investment in Parent.
4.2. Limitations on Disposition and Resale. Investor understands and acknowledges
that the Exchange Shares have not been and will not be registered under the Securities Act, or the
securities laws of any state and, unless the Exchange Shares are so registered, they may not be
offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act and any applicable
securities laws of any state or foreign jurisdiction. Investor agrees not to sell, transfer or
otherwise dispose of the Exchange Shares unless the Exchange Shares have been so registered or an
exemption from the requirement of registration is available under the Securities Act and any
applicable state securities laws. Investor further acknowledges and agrees that his ability to
dispose of the Exchange Shares will be subject to restrictions
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contained in the Stockholders Agreement. Investor recognizes that there will not be any
public trading market for Parent Common Stock and, as a result, Investor may be unable to sell or
dispose of his interest in Parent. Investor further acknowledges and agrees that, except as may be
set forth in the Registration Rights Agreement and the Stockholders Agreement, Parent shall have no
obligation to register shares of Parent Common Stock.
4.3. Legend. Investor acknowledges and agrees that the Exchange Shares received in
the Contributions and represented by physical certificates will bear the following legend (or one
to substantially similar effect):
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES
MAY NOT BE SOLD, TRANSFERRED, OR PLEDGED IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO
THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. THE SECURITIES
REPRESENTED HEREBY ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND CERTAIN
OTHER AGREEMENTS SET FORTH IN A STOCKHOLDERS AGREEMENT, DATED AS OF ___,
2005. A COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO
THE HOLDER HEREOF UPON WRITTEN REQUEST.”
4.4. Newly Formed Entity. Investor recognizes that Parent was only recently formed
and, accordingly, has no financial or operating history and that the investment in Parent is
extremely speculative and involves a high degree of risk.
Section 5. Support of the Transaction. Investor and Parent shall use commercially
reasonable efforts to assemble, prepare and file any information (and, as needed, to supplement
such information) as may be reasonably necessary to obtain as promptly as practicable all
governmental and regulatory consents required to be obtained in connection with the Contributions
and the Cash Equity Capitalization, including, without limitation, any filings pursuant to or
required under the HSR Act. Parent agrees that it will not agree to any material amendment to the
Merger Agreement or waive any material condition set forth in the Merger Agreement without the
prior written consent of Investor.
Section 6. Attorneys’ Fees. In the event of any litigation or other legal proceeding
involving the interpretation of this Agreement or enforcement of the rights or obligations of the
parties hereto, the prevailing party or parties shall be entitled to recover reasonable attorneys’
fees and costs determined by a court of other adjudicator.
Section 7. 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).
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Section 8. 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 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 (i)
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; (ii) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from such court, (iii) 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 (iv) to the fullest extent permitted by Law, consents to service being made through
the notice procedures set forth in Section 9. 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 9 shall be effective service of process for
any suit or proceeding in connection with this Agreement or the transactions contemplated hereby.
Section 9. Notices. All notices and other communications among the parties shall be
in writing and shall be deemed to have been duly given when (i) delivered in person, (ii) five (5)
days after posting in the United States mail having been sent registered or certified mail return
receipt requested, or (iii) delivered by telecopy and promptly confirmed by delivery in person or
post as aforesaid in each case, with postage prepaid, addressed as follows:
| (a) If to Parent, to: | ||||
| Sunshine Acquisition Corporation | ||||
| c/o The Carlyle Group | ||||
| 000 Xxxxx Xxxxx Xxxxxx | ||||
| Xxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxxxxx X. Xxxxx XX | ||||
| Telecopy No.: (000) 000-0000 | ||||
| with a copy to: | ||||
| Xxxxxx & Xxxxxxx LLP | ||||
| 000 Xxxxxxxx Xxxxxx, X.X., Xxxxx 0000 | ||||
| Xxxxxxxxxx, X.X. 00000-0000 | ||||
| Attention: Xxxxxx X. Xxxxxx | ||||
| Telecopy No.: (000) 000-0000 | ||||
| (b) If to Investor, to: |
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| Xxxxxxx X. Xxxxx | ||||
| 00 Xxxx Xxxxx Xx. | ||||
| Xxxx, XX 00000 | ||||
| Telecopy No: (000) 000-0000 | ||||
| with a copy to: | ||||
| Cadwalader, Xxxxxxxxxx & Xxxx LLP | ||||
| Xxx Xxxxx Xxxxxxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: Xxxxx Xxxxxxxxxx | ||||
| Telecopy No.: (000) 000-0000 |
Section 10. Assignment. No party shall have the right or the power to assign or
delegate any provision of this Agreement except with the prior written consent of Parent, in the
case of an assignment or delegation by Investor, or with the prior written consent of Investor, in
the case of an assignment or delegation by Parent. Except as provided in the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective
successors, assigns, executors and administrators.
Section 11. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which taken together, shall constitute one and the
same document.
Section 12. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and may be amended only in a writing
executed by the party to be bound thereby.
Section 13. Termination of Agreement. This Agreement may be terminated by the mutual
written consent of Parent and Investor. This Agreement shall terminate automatically without any
action of the parties hereto upon termination of the Merger Agreement. Upon such termination, this
Agreement shall not have any further force and effect; provided that termination of this Agreement
shall not relieve any party from any liability for any breach of this Agreement occurring prior to
such termination.
Section 14. Further Assurances. Subject to the terms and conditions provided herein,
each party hereto agrees to use all commercially reasonable efforts to take, or cause to be taken,
all action, and to do, or cause to be done, all things necessary, proper or advisable, whether
under applicable laws and regulations or otherwise, in order to consummate and make effective the
transactions contemplated by this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have hereby executed this Contribution and Subscription
Agreement as of the date first above written.
| SUNSHINE ACQUISITION CORPORATION |
||||
| By: | /s/Xxxxxxxx X. Xxxxx XX | |||
| Name: | Xxxxxxxx X. Xxxxx XX | |||
| Title: | President | |||
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
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