Exhibit 2
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of July 28, 2005,
is made by and among Xxxxxxx X. Xxxxx (the "Principal Stockholder"), SS&C
Technologies, Inc., a Delaware corporation (the "Company"), Sunshine Acquisition
Corporation, a Delaware corporation ("Parent"), and Sunshine Merger Corporation,
a Delaware corporation and wholly owned subsidiary of Parent ("Merger Co").
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, the Company, Parent and Merger Co are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as amended or
supplemented from time to time in accordance with the terms thereof, the "Merger
Agreement"), providing for the merger of Merger Co with and into the Company
with the Company as the surviving corporation (the "Merger"), upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Principal Stockholder
beneficially owns 5,872,020 shares of common stock, par value $0.01 per share,
of the Company (the "Common Stock"); and
WHEREAS, as a condition to the willingness of Parent and Merger Co
to enter into the Merger Agreement, each of Parent and Merger Co has required
that the Principal Stockholder agree, and in order to induce Parent and Merger
Co to enter into the Merger Agreement, the Principal Stockholder has agreed, to
enter into this Agreement with respect to (a) all the shares of Common Stock now
beneficially owned by, and all the shares of Common Stock or other voting
securities of the Company which may hereafter be acquired by, or on behalf of,
or issued to the Principal Stockholder (collectively, the "Shares"), and (b)
certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
VOTING AGREEMENT
----------------
Section 1.1 Voting Agreement. The Principal Stockholder hereby
agrees that during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval (including
by written consent) is sought, the Principal Stockholder shall (a) when a
meeting is held, appear at such meeting or otherwise cause all Vote Eligible
Shares to be counted as present thereat for the purpose of establishing a quorum
and (b) vote (or cause to be voted) all Vote Eligible Shares: (i) in favor of
the Merger, the Merger Agreement and the transactions contemplated by the Merger
Agreement if a vote, consent or other approval (including by written consent)
with respect to any of the foregoing is sought and (ii) against any (x) merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization,
dissolution, liquidation or winding up of or by the Company or any other
Acquisition Proposal or (y) amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
would in any manner reasonably be expected to impede, delay, frustrate, prevent
or nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or result in a breach in any material
respect of any representation, warranty, covenant or agreement of the Company
under the Merger Agreement or change in any manner the voting rights of any
class of the Common Stock. "Vote Eligible Shares" means all Shares held of
record by the Principal Stockholder and all other Shares which the Principal
Stockholder has the power to vote at any meeting of the stockholders of the
Company or in connection with any written consent of Stockholders.
Section 1.2 Acknowledgment. The Principal Stockholder hereby
acknowledges receipt and review of a copy of the Merger Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDER
------------------------------
The Principal Stockholder hereby represents and warrants to Parent
as follows:
Section 2.1 Authority Relative To This Agreement. The Principal
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform his obligations hereunder and to consummate the
transactions to be consummated by him as contemplated hereby. This Agreement has
been duly and validly executed and delivered by the Principal Stockholder and,
assuming the due authorization, execution and delivery by the other parties
hereto, constitutes a legal, valid and binding obligation of the Principal
Stockholder, enforceable against the Principal Stockholder in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at Law).
Section 2.2 No Conflict.
(a) The execution and delivery of this Agreement by the Principal
Stockholder do not, and the performance of his obligations under this Agreement
and the consummation of the transactions to be consummated by him as
contemplated hereby shall not, (i) conflict with or violate any Law applicable
to the Principal Stockholder or by which the Shares are bound or affected or
(ii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on, any of the Shares pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Principal Stockholder
is a party or by which the Principal Stockholder or the Shares are bound or
affected.
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(b) The execution and delivery of this Agreement by the Principal
Stockholder do not, and the performance of his obligations under this Agreement
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any court or arbitrator or any governmental entity,
agency or official except for applicable requirements, if any, of the Securities
Exchange Act of 1934, as amended, and except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by the Principal
Stockholder of his obligations under this Agreement.
Section 2.3 Ownership Of Shares. As of the date hereof, the
Principal Stockholder is the record and beneficial owner of the Shares set forth
opposite the Principal Stockholder's name on Schedule A hereto, free and clear
of 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 the Shares (collectively, "Liens").
There are no outstanding options, warrants or rights to purchase or acquire, or
agreements or arrangements relating to the voting of, any Shares and the
Principal Stockholder has the sole authority to direct the voting of the Shares
in accordance with the provisions of this Agreement and the sole power of
disposition with respect to the Shares, with no restrictions, subject to
applicable federal securities laws on his rights of disposition pertaining
thereto (other than Liens or restrictions created by this Agreement and the
Contribution and Subscription Agreement, dated as of July 28, 2005, by and among
the Principal Stockholder and Parent (the "Contribution Agreement")). As of the
date hereof, the Principal Stockholder does not own beneficially or of record
any equity securities of the Company other than the Shares set forth opposite
the Principal Stockholder's name on Schedule A hereto. The Principal Stockholder
has not appointed or granted any proxy which is still in effect with respect to
any Shares.
Section 2.4 No Finder's Fee. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Principal Stockholder.
Section 2.5 Reliance By Parent and Merger Co. The Principal
Stockholder understands and acknowledges that Parent and Merger Co are entering
into the Merger Agreement in reliance upon the Principal Stockholder's execution
and delivery of this Agreement. The Principal Stockholder is an "accredited
investor" (as defined under the Securities Act of 1933, as amended) and a
sophisticated investor, is capable of evaluating the merits and risks of his
investments and has the capacity to protect his own interests.
ARTICLE III.
COVENANTS OF THE PRINCIPAL STOCKHOLDER
--------------------------------------
Section 3.1 No Inconsistent Agreement. The Principal Stockholder
hereby covenants and agrees that the Principal Stockholder (a) has not entered
into and shall not enter into any agreement that would restrict, limit or
interfere with the performance of the Principal Stockholder's obligations
hereunder or under the Contribution Agreement and (b) shall not knowingly take
any action that would reasonably be expected to make any of his representations
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or warranties contained herein or in the Contribution Agreement untrue or
incorrect or have the effect of preventing or disabling him from performing his
obligations under this Agreement or the Contribution Agreement.
Section 3.2 No Transfer. Other than pursuant to the terms of this
Agreement, the Merger Agreement or the Contribution Agreement, without the prior
written consent of Parent or as otherwise provided in this Agreement, during the
term of this Agreement, the Principal Stockholder hereby agrees to not, directly
or indirectly, (a) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares or (b) sell,
assign, transfer, encumber or otherwise dispose of (including by merger,
consolidation or otherwise by operation of Law), or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect assignment, transfer, encumbrance or other disposition of (including by
merger, consolidation or otherwise by operation of Law), any Shares. The
Principal Stockholder agrees, while this Agreement is in effect, to promptly
notify Parent of the number of any Shares acquired by the Principal Stockholder,
if any, after the date hereof.
Section 3.3 No Solicitation. (a) The Principal Stockholder hereby
acknowledges that he is aware of the covenants of the Company contained in
Section 6.04 of the Merger Agreement and hereby agrees that he shall, and shall
cause his representatives to, immediately cease any discussions or negotiations
with any parties that may be ongoing with respect to an Acquisition Proposal and
request the prompt return or destruction of all confidential information
previously furnished to such parties or their representatives. The Principal
Stockholder hereby further agrees that he shall not, nor shall he permit any of
his representatives to, directly or indirectly, (i) solicit, initiate,
facilitate or knowingly encourage (including by way of furnishing non-public
information or providing access to the Company's or the Principal Stockholder's
properties, books, records or personnel, as applicable) any inquiries regarding,
or the making of any proposal or offer that constitutes, or could reasonably be
expected to lead to, an Acquisition Proposal or (ii) have any discussions or
participate in any negotiations regarding an Acquisition Proposal, or otherwise
facilitate any efforts or attempt to implement an Acquisition Proposal or
execute or enter into any agreement, understanding or arrangement with respect
to an Acquisition Proposal, except, in each case, to the extent that the Company
is permitted to engage in such solicitation, initiation, facilitation,
discussion or negotiation pursuant to Section 6.04 of the Merger Agreement;
provided, that, to the extent that the Company informs the Principal Stockholder
that the Board of Directors of the Company has determined that the Company is
entitled to engage in any such solicitation, initiation, facilitation,
discussion or negotiation pursuant to Section 6.04 of the Merger Agreement, the
Principal Stockholder may conclusively rely on such determination and shall not
be held liable for breach under this Agreement if such determination is later
determined to be incorrect or inconsistent with the terms of this Agreement. The
Principal Stockholder shall promptly advise Parent orally and in writing of the
receipt by the Principal Stockholder or any of his representatives of any
Acquisition Proposal or any inquiry with respect to, or that could reasonably be
expected to lead to, any Acquisition Proposal (in each case within 24 hours of
receipt thereof), specifying the material terms and conditions thereof and the
identity of the party making such Acquisition Proposal or inquiry, and shall
provide to Parent (within such 24 hour time frame), a copy of all written
materials provided to or by the Principal Stockholder in connection with such
Acquisition Proposal or inquiry. The Principal Stockholder shall keep Parent
fully informed on a current basis of the status of any
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such Acquisition Proposal or inquiry and shall promptly notify Parent (as
promptly as practicable and in any event within 24 hours) orally and in writing
of any modifications to the financial or other material terms of such
Acquisition Proposal or inquiry and shall provide to Parent, within such 24 hour
timeframe, a copy of all written materials subsequently provided to or by the
Principal Stockholder in connection with any such Acquisition Proposal or
inquiry.
(b) Notwithstanding the foregoing, nothing in this Agreement shall
be deemed to prohibit the Principal Stockholder from fulfilling his obligations
as the chief executive officer and as a director of the Company with respect to
taking, as a representative of the Company, any action which is expressly
permitted to be taken by the Company pursuant to Section 6.04 of the Merger
Agreement or from entering into negotiations and discussions regarding the
Shares with respect to any Acquisition Proposal at any time that the Company is
permitted to engage in negotiations or discussions with respect thereto under
such Section 6.04.
Section 3.4 Waiver Of Appraisal Rights. The Principal Stockholder
hereby irrevocably and unconditionally waives, and agrees to prevent the
exercise of, any rights of appraisal, any dissenters' rights and any similar
rights relating to the Merger or any related transaction that the Principal
Stockholder may directly or indirectly have by virtue of the ownership of any
Shares.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to the Principal
Stockholder and Parent that the Company has all necessary power and authority to
execute and deliver this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company and, assuming the due authorization,
execution and delivery by the other parties hereto, is a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at Law). Assuming the accuracy of
Parent's representations and warranties in Section 4.10 of the Merger Agreement,
the Board of Directors of the Company has taken all necessary action to ensure
that the restrictions on business combinations contained in Section 203 of the
General Corporation Law of the State of Delaware will not apply to this
Agreement or the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by the Company do not, and the consummation by the
Company of the transactions contemplated hereby and compliance by the Company
with the terms hereof will not, conflict with, or result in any violation or
default of (with or without notice or lapse of time or both), any provision of,
the certificate of incorporation or by-laws of the Company, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, or Law applicable
to the Company or to the Company's property or assets.
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ARTICLE V.
MISCELLANEOUS
-------------
Section 5.1 Termination. This Agreement and all of its provisions
shall terminate upon the earliest of (a) the Effective Time, (b) the termination
of the Merger Agreement in accordance with its terms, and (c) written notice of
termination of this Agreement by Parent to the Principal Stockholder (such date
of termination, the "Termination Date"). Nothing in this Section 5.1 shall be
deemed to release any party from any liability for any breach by such party of
the terms and provisions of this Agreement.
Section 5.2 Amendment Of Merger Agreement. The obligations of the
Principal Stockholder under this Agreement shall terminate if the Merger
Agreement is amended or otherwise modified after the date hereof without the
prior written consent of the Principal Stockholder in a manner that reduces or
changes the form of Merger Consideration or adversely affects the rights of the
Principal Stockholder.
Section 5.3 Fees And Expenses. Except as otherwise provided herein
or as set forth in the Merger Agreement, all costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid by
the party incurring such costs and expenses.
Section 5.4 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (a) on the
date of delivery if delivered personally, (b) on the first business day
following the date of dispatch if delivered by a nationally recognized next-day
courier service, (c) on the fifth business day following the date of mailing if
delivered by registered or certified mail (postage prepaid, return receipt
requested) or (d) if sent by facsimile transmission, when transmitted and
receipt is confirmed. All notices hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 5.4):
if to Parent or Merger Co:
Sunshine Acquisition Corp.
c/o The Carlyle Group
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx XX
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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if to the Company:
SS&C Technologies, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to each of:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and
Morris, Nichols, Arsht & Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
if to the Principal Stockholder
Xxxxxxx X. Xxxxx
00 Xxxx Xxxxx Xx.
Xxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
Section 5.5 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as
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possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
Section 5.6 Entire Agreement; Assignment. This Agreement, the Merger
Agreement and the Contribution Agreement constitute the entire agreement among
the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior agreements and undertakings, both written and oral, among
the parties hereto, or any of them, with respect to the subject matter hereof
and thereof. This Agreement shall not be assigned (whether pursuant to a merger,
by operation of Law or otherwise), except that Parent or Merger Co may assign
all or any of their rights and obligations hereunder to an Affiliate, provided,
however, that no such assignment shall relieve the assigning party of its
obligations hereunder if such assignee does not perform such obligations.
Section 5.7 Amendment. This Agreement may be amended by the parties
hereto by action taken by or on behalf of the respective Boards of Directors of
the parties (in the case of the Company, Parent and Merger Co) and the Principal
Stockholder at any time prior to the Effective Time. This Agreement may not be
amended except by an instrument in writing signed by each of the parties hereto.
Section 5.8 Waiver. At any time prior to the Effective Time, any
party hereto may (a) extend the time for the performance of any obligation or
other act of any other party hereto, (b) waive any inaccuracy in the
representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any agreement
of any other party or any condition to its own obligations contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby. The failure of any party to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of those rights.
Section 5.9 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 5.10 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).
Section 5.11 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 the 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 (a) 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 or any of the
transactions
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contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from such
court, (c) 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 (d) to
the fullest extent permitted by Law, consents to service being made through the
notice procedures set forth in Section 5.4. 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 5.4 shall be effective service of process for any suit or proceeding
in connection with this Agreement or the transactions contemplated hereby.
Section 5.12 Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 5.12.
Section 5.13 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 5.14 Counterparts. This Agreement may be executed and
delivered (including by facsimile or other electronic transmission) in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
Section 5.15 Further Assurances.
From time to time, at the request of another party and without
further consideration, each party hereto shall take such reasonable further
action as may reasonably be necessary or desirable to consummate and make
effective the transactions contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Principal Stockholder, the Company, Parent
and Merger Co have caused this Agreement to be duly executed on the date hereof.
Sunshine Acquisition Corporation
By: /s/ Xxxxxxxx X. Xxxxx XX
---------------------------------------
Name: Xxxxxxxx X. Xxxxx XX
Title: President
Sunshine Merger Corporation
By: /s/ Xxxxxxxx X. Xxxxx XX
---------------------------------------
Name: Xxxxxxxx X. Xxxxx XX
Title: President
SS&C TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
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