Exhibit 3
CONTRIBUTION AND SUBSCRIPTION AGREEMENT
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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