Exhibit 10.8
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("AGREEMENT"), dated as of January 22,
2002, is among SS&C Technologies, Inc., a Delaware corporation (the "COMPANY"),
General Atlantic Partners 15, L.P., a Delaware limited partnership ("GAP 15"),
and GAP Coinvestment Partners, L.P., a New York limited partnership ("GAPCO" and
together with GAP 15, the "SELLERS").
BACKGROUND
Each of the Sellers desires to sell and the Company desires to purchase
the aggregate number of shares of Common Stock of the Company set forth opposite
the name of such Seller on Schedule 1.02 hereto (the "SECURITIES") on the terms
and conditions set forth in this Agreement.
THEREFORE, the parties agree as follows:
SECTION I
PURCHASE AND SALE OF SECURITIES
1.01 SALE OF SECURITIES. Each Seller, severally and not
jointly, agrees to sell, assign, transfer and deliver to the Company on the
Closing Date (as defined below) the aggregate number of Securities set forth
opposite the name of such Seller on Schedule 1.02 hereto, and the Company agree
to purchase such Securities from such Seller on the Closing Date, pursuant to
this Agreement.
1.02 PURCHASE PRICE. In full consideration of the sale of the
Securities by the Sellers, the Company shall pay to each Seller on the Closing
Date the aggregate amount set forth opposite the name of such Seller on Schedule
1.02 hereto, at Eight Dollars and Fifty Cents ($8.50) per share, for an
aggregate purchase price of Eleven Million Fifty Thousand Dollars ($11,050,000)
(the "PURCHASE PRICE"). The Purchase Price shall be paid by the wire transfer of
immediately available funds to each Seller's account as designated by such
Seller.
1.03 CLOSING. The closing of the transactions contemplated by
this Agreement (the "CLOSING") will take place by exchange of closing documents
by telecopier or by other means mutually agreed upon by the parties on January
25, 2002 (the "CLOSING DATE"). At the Closing, each Seller will deliver to the
Company a stock certificate or stock certificates representing at least the
number of Securities being sold by such Seller, along with a stock power
reasonably acceptable to the Company, against payment to such Seller of its
portion of the Purchase Price as set forth on Schedule 1.02 hereto and in
accordance with Section 1.02 of this Agreement. If any Seller delivers to the
Company a stock certificate or stock certificates representing in excess of the
number of Securities being sold by such Seller, the Company shall, not later
than 10 days after the Closing Date, deliver, or cause its transfer agent to
deliver, to such Seller a new certificate representing the number of shares of
Common Stock of the Company constituting such excess.
SECTION II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
In order to induce the Company to purchase the Securities,
each Seller represents and warrants, severally and not jointly, to the Company
as follows:
2.01 EXISTENCE AND GOOD STANDING. Such Seller is a limited
partnership duly organized and validly existing under the laws of the
jurisdiction of its formation, and has full power and authority to sell the
Securities being sold by such Seller and to enter into and perform its
obligations under this Agreement.
2.02 AUTHORIZATION. The execution and delivery of this
Agreement by such Seller and the consummation by such Seller of the transactions
contemplated by this Agreement have been duly authorized by all necessary
partnership action on the part of such Seller. No consent, approval, license
from, or exemption of, and no registration, qualification, designation,
declaration or filing with, any court or governmental department, commission,
board, bureau, agency or instrumentality, or any other party, which has not been
obtained as of this date, is or will be necessary for the valid execution and
delivery by such Seller of this Agreement, or the consummation by such Seller of
the transactions contemplated by this Agreement.
2.03 NO CONFLICT WITH OTHER INSTRUMENTS. Neither the execution
and delivery by such Seller of this Agreement, the consummation by such Seller
of the transactions contemplated by this Agreement, nor the compliance by such
Seller with the terms and conditions of this Agreement, will (a) violate any
provision of such Seller's organizational documents, as amended to date; (b)
violate or conflict with or result in a breach of any law, regulation, order,
writ, injunction or decree of any court, arbitrator or governmental
instrumentality to which such Seller is bound; (c) violate or be in conflict
with, or constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, or entitle any party to terminate
any or all of the provisions of, or cause the acceleration of or entitle any
party to accelerate the performance required by, or cause the acceleration of or
entitle any party to accelerate the maturity of any debt or obligation pursuant
to, any contract, agreement, arrangement, commitment or restriction of any kind
to which such Seller is a party or by which such Seller is bound; or (d) result
in the creation or imposition of any security interest, lien or other
encumbrance upon the Securities being sold by such Seller under any contract,
agreement, arrangement, commitment or restriction of any kind to which such
Seller is a party or by which such Seller is bound.
2.04 VALIDITY AND BINDING EFFECT. This Agreement has been duly
and validly executed and delivered by such Seller; and this Agreement
constitutes the legal, valid and binding obligation of such Seller, enforceable
against such Seller in accordance with its terms, except as the enforceability
of this Agreement may be limited by bankruptcy, insolvency or other similar laws
of general application affecting the enforceability of creditors' rights
generally, or by general principles of equity.
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2.05 TITLE TO SECURITIES. Such Seller owns, and on the Closing
Date such Seller will own, all right, title and interest (legal and beneficial)
in and to the Securities being sold by such Seller without restriction, other
than restrictions imposed under applicable securities laws and restrictions
created by the Company. Upon such Seller's delivery of certificates representing
the Securities, duly endorsed for transfer to the Company, and the Company's
payment to such Seller of the Purchase Price therefor, the Company will acquire
such Securities free and clear of all liens, charges and encumbrances, other
than restrictions imposed under applicable securities laws and restrictions
created by the Company.
2.06 LITIGATION. There is no (a) action, suit, claim,
proceeding or investigation pending or, to such Seller's knowledge, threatened
against or affecting, such Seller, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (b) arbitration
proceeding relating to such Seller, or (c) governmental inquiry pending, or to
such Seller's knowledge threatened, against or affecting such Seller, any of
which, if adversely determined, would invalidate or prevent the performance by
such Seller of the transactions contemplated by this Agreement.
2.07 EXPERIENCE. Such Seller has sufficient knowledge and
experience in finance and business that it is capable of evaluating the risks
and merits of its sale of its Securities to the Company. The Company has
answered to such Seller's satisfaction all inquiries made by such Seller to the
Company. Such Seller acknowledges and agrees that, except for information
previously disclosed publicly by the Company, all information provided to such
Seller by officials of the Company is confidential. Such Seller agrees to
maintain such disclosed information in confidence unless such information is
released publicly by the Company.
2.08 BROKERS. Such Seller shall be responsible for any fees
and expenses owed to any agent, broker or finder with which such Seller has made
any agreement or commitment in connection with the transactions contemplated by
this Agreement.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Sellers to sell the Securities, the
Company represents and warrants to the Sellers as follows:
3.01 EXISTENCE AND GOOD STANDING. The Company is a corporation
duly organized and validly existing under the laws of the State of Delaware, and
has full power and authority to acquire the Securities and to enter into and
perform its obligations under this Agreement.
3.02 AUTHORIZATION. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Company. No consent, approval, license from,
or exemption of, and no registration, qualification, designation, declaration or
filing with, any court or governmental department,
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commission, board, bureau, agency or instrumentality, or any other party, which
has not been obtained as of this date, is or will be necessary for the valid
execution and delivery by the Company of this Agreement, or the consummation by
the Company of the transactions contemplated by this Agreement.
3.03 NO CONFLICT WITH OTHER INSTRUMENTS. Neither the execution
and delivery by the Company of this Agreement, the consummation by the Company
of the transactions contemplated by this Agreement, nor the compliance by the
Company with the terms and conditions by this Agreement, will (a) violate any
provision of the Company's Certificate of Incorporation, as amended to date, or
the Company's By-laws, as amended to date; (b) violate or conflict with or
result in a breach of any law, regulation, order, writ, injunction or decree of
any court, arbitrator or governmental instrumentality to which the Company is
bound; or (c) violate or be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or entitle any party to terminate any or all of the provisions of, or
cause the acceleration of or entitle any party to accelerate the performance
required by, or cause the acceleration of or entitle any party to accelerate the
maturity of any debt or obligation pursuant to, any contract, agreement,
arrangement, commitment or restriction of any kind to which the Company is a
party or by which the Company is bound.
3.04 VALIDITY AND BINDING EFFECT. This Agreement has been duly
and validly executed and delivered by the Company, and this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforceability of creditors' rights generally, or by
general principles of equity.
3.05 LITIGATION. There is no (a) action, suit, claim,
proceeding or investigation pending or, to the Company's knowledge, threatened
against or affecting, the Company, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (b) arbitration
proceeding relating to the Company, or (c) governmental inquiry pending, or to
the Company's knowledge threatened, against or affecting the Company, any of
which, if adversely determined, would invalidate or prevent the performance by
the Company of the transactions contemplated by this Agreement.
3.06 PURCHASE FOR INVESTMENT. The Company is acquiring the
Securities for its own account for investment purposes only and not with a view
toward any resale or distribution of the Securities.
SECTION IIIA
CONDITIONS
3.01A CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE.
The obligation of the Company to purchase the Securities, to pay the Purchase
Price therefor at the Closing and to perform its obligations hereunder shall be
subject to the satisfaction as determined
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by, or waiver by, the Company of the following condition on or before the
Closing Date: The Sellers shall have delivered the stock certificates
representing the Securities and stock powers; and all of the representations and
warranties of the Sellers set forth in Section II shall be true and correct on
the Closing Date as though made on such date.
3.02A CONDITIONS TO THE OBLIGATION OF THE SELLERS TO CLOSE.
The obligation of each Seller to sell the Securities being sold by such Seller
and to perform its obligations hereunder shall be subject to the satisfaction as
determined by, or waiver by, the Sellers of the following conditions on or
before the Closing Date: The Company shall have paid the aggregate Purchase
Price for the Securities; and all of the representations and warranties of the
Company set forth in Section III shall be true and correct on the Closing Date
as though made on such date.
SECTION IV
MISCELLANEOUS
4.01 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together
with the schedule hereto, sets forth the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements between
them, whether written or oral, with respect to its subject matter. Any
amendment, supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by the Company or the Sellers from the terms of any provision of this Agreement,
shall be effective (i) only if it is made or given in writing and signed by the
Company and the Sellers, and (ii) only in the specific instance and for the
specific purpose for which made or given. Neither the Company nor the Sellers
shall assign any of its rights or obligations under this Agreement without the
written consent of the other parties hereto.
4.02 FEES AND EXPENSES. Each of the parties hereto shall pay
its own fees and expenses incurred in connection with this Agreement or
otherwise.
4.03 GOVERNING LAW. This Agreement and the rights and
obligations of the parties under it shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without giving
effect to the rules and principles of conflicts of laws thereof.
4.04 COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which together shall
constitute one and the same instrument. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile machine
or telecopier is to be treated as an original document.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
SS&C TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
GENERAL ATLANTIC PARTNERS 15, L.P.
By: General Atlantic Partners, LLC, its
General Partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: A General Partner
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
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Schedule 1.02
Securities and Purchase Price
Seller Securities Purchase Price
GAP 15 1,191,766 $10,130,011.00
GAPCO 108,234 $919,989.00
Total 1,300,000 $11,050,000.00
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