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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Agreement, dated as of November 23, 2005, is entered into by
and
between William C. Stone (the "Executive") and Sunshine Acquisition
Corporation,
a Delaware corporation (together with any successor thereto, the
"Company").
WITNESSETH THAT
WHEREAS, the Company, Sunshine Merger Corporation and SS&C
Technologies, Inc. ("SS&C") entered into an Agreement and Plan
of Merger dated
July 28, 2005 (the "Merger Agreement"); and
WHEREAS, subject to the consummation of the Merger as described in
the
Merger Agreement, the Company and the Executive wish to set forth
the terms and
conditions of Executive's employment with the Company and SS&C
in a binding
written agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
in
this Agreement, it is hereby agreed as follows:
1. Term of Employment. The term of the Executive's employment
under
this Agreement (the "Term") shall begin on the Effective Date of
the Merger, as
defined in the Merger Agreement (the "Effective Date") and end on
the third
anniversary thereof; provided, that the Term shall be extended by
successive
periods of one (1) year, unless the Company shall have notified the
Executive or
the Executive shall have notified the Company that no such
extension shall take
place, in each case at least ninety (90) days prior to the
expiration of the
then-current Term (a "Notice of Nonrenewal"); and provided,
further, that the
Term shall in any event end upon a termination of employment in
accordance with
the terms of Section 5 hereof.
2. Position, Duties and Location.
(a) Position. Beginning on the Effective Date, the Executive
shall
serve as Chairman of the Board of Directors of the Company (the
Board") and
Chief Executive Officer of the Company and SS&C, with the
duties and
responsibilities customarily assigned to those positions consistent
with past
practice and such other duties and responsibilities as the Board of
Directors of
the Company (the "Board") shall from time to time reasonably assign
to the
Executive consistent with Executive's position. The Executive shall
at all times
report directly to the Board. In addition, Executive shall serve as
the Chairman
of the Board of Directors of SS&C and any direct or indirect
parent or holding
company, the assets of which are the stock of SS&C.
(b) Duties. During the Term, the Executive shall devote
Executive's
full business attention and time to the business of the Company and
SS&C and
shall use Executive's reasonable best efforts to carry out such
responsibilities
faithfully and efficiently. During the Term, it shall not be
considered a
violation of the foregoing for the Executive to serve on
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corporate, civic or charitable boards or committees, and manage
personal
investments, so long as such activities do not materially interfere
with the
performance of the Executive's responsibilities as an employee of
the Company
and SS&C and do not violate the restrictions contained in
Section 7.
(c) Location. The Executive's services shall be performed primarily
at
SS&C's offices in Windsor, Connecticut.
3. Compensation.
(a) Base Salary. During the Term, the Executive shall receive a
base
salary (the "Base Salary") at an annual rate of not less than
five-hundred
thousand dollars ($500,000), payable at such times as SS&C
customarily pays the
base salaries of other senior executives of SS&C (hereinafter,
"Other Senior
Executives"). The Base Salary shall be reviewed annually for
increase in
accordance with SS&C's normal practices for Other Senior
Executives. The Base
Salary shall not be reduced, including, after any increase, and the
term "Base
Salary" shall thereafter refer to the Base Salary as so
increased.
(b) Annual Bonus. During the Term, the Executive shall be eligible
to
earn an annual bonus (the "Annual Bonus") based on individual and
Company
performance goals mutually determined by Executive and the Board.
The Board
shall set Executive's target Annual Bonus each year (the "Target
Annual Bonus").
Subject to Executive remaining employed by the Company through
December 31st of
the applicable calendar year, Executive will receive a minimum
Annual Bonus of
$450,000; provided, that for calendar year 2005, Executive's
minimum Annual
Bonus of $450,000 shall be pro-rated for the time period beginning
on the
Effective Date and ending on December 31, 2005.
(c) Long Term Incentive Compensation.
(i) During the Term and subject to the terms of this Agreement,
Executive shall be eligible to receive annual awards under any long
term
incentive program or similar plan, program or arrangement of the
Company, which
may include options to purchase shares of common stock of the
Company
("Options") or restricted shares of common stock of the Company
("Restricted
Shares").
(ii) Notwithstanding the generality of the foregoing clause
(i),
on or at the first Board meeting following the Effective Date,
Executive shall
be granted an option to purchase that number of shares of common
stock of the
Company equal to 2% of the fully diluted shares of the Company, as
determined
immediately following the Effective Date (the "Initial Option"), at
a per share
exercise price equal to the per share price paid by Carlyle
Partners IV, L.P. to
purchase shares of common stock of the Company on the Effective
Date. Subject to
the terms of Section 5 hereof, the Initial Option shall vest based
on the
passage of time and/or the achievement of performance milestones as
provided in
the option program that will be approved by the Board on or at the
first Board
meeting following the Effective Date.
(iii) All Options granted to Executive shall (A) have a per
share
exercise price that is no greater than fair market value of a share
of common
stock of the
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Company on the date of grant; (B) have a maximum term of ten years
from the date
of grant; and (C) otherwise be subject to the terms of this
Agreement.
(iv) Subject to Section 5 of this Agreement, the Company,
SS&C
and the Executive agree that Executive's stock options to purchase
SS&C common
stock that are assumed by the Company in the Merger (the "Assumed
Options")
shall continue to vest in accordance with their terms, as adjusted
to reflect
the shares of Company common stock issued in the Merger,
notwithstanding any
contrary action taken by the Board of Directors of SS&C prior
to the Merger.
4. Other Benefits.
(a) Benefits. During the Term, the Executive shall be entitled
to
participate in the benefits, incentive and compensation plans
programs and
arrangements of SS&C ("Employee Benefit Plans"), on terms and
conditions no less
favorable than those applicable to any Other Senior Executive.
Without limiting
the generality of the foregoing, Executive shall be entitled to no
less than six
(6) weeks of paid vacation per calendar year.
(b) Perquisites. The Board may from time to time approve the
granting
of additional benefits to Executive including, but not limited to,
life and/or
disability insurance, car allowance or Company car, or membership
in health,
business or social and/or other clubs, associations or
organizations. Such
perquisites shall be no less favorable in any material respect than
such
perquisites provided to the Executive by SS&C prior to the
Merger.
(c) Expenses. During the Term, the Executive shall be entitled
to
receive prompt reimbursement for all reasonable expenses that
Executive incurs
during the Term in carrying out Executive's duties under this
Agreement.
(d) Key Person Insurance. The Company and SS&C shall have the
right to
insure the life of the Executive for the Company's and/or
SS&C's sole benefit.
The Company and SS&C shall have the right to determine the
amount of insurance
and the type of policy. The Executive shall cooperate with the
Company and SS&C
in obtaining such insurance by submitting to reasonably required
physical
examinations, by supplying all information reasonably required by
any insurance
carrier, and by executing all necessary documents reasonably
required by any
insurance carrier. The Executive shall incur no financial
obligation by
executing any required document, and shall have no interest in any
such policy.
(e) Indemnity. The Company and SS&C agree that if the Executive
is
made a party, or is threatened to be made a party, to any action,
suit or
proceeding, whether civil, criminal, administrative or
investigative (a
"Proceeding"), by reason of the fact that Executive is or was a
director,
officer or employee of the Company or SS&C or is or was serving
at the request
of the Company or SS&C as a director, officer, member, employee
or agent of
another corporation, partnership, joint venture, trust, limited
liability
company or other enterprise, including service with respect to
employee benefit
plans, whether or not the basis of such Proceeding is the
Executive's alleged
action in an official capacity while serving as a director,
officer, member,
employee or agent, the Executive shall be indemnified and held
harmless by the
Company and SS&C to the fullest extent legally permitted or
authorized by the
Company's and
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SS&C's certificates of incorporation or bylaws or resolutions
of the Board or,
if greater, by the laws of the State of Delaware, against all cost,
expense,
liability and loss (including, without limitation, attorney's fees,
judgments,
fines, ERISA excise taxes or other liabilities or penalties and
amounts paid or
to be paid in settlement) reasonably incurred or suffered by the
Executive in
connection therewith, and such indemnification shall continue as to
the
Executive even if Executive has ceased to be a director, member,
employee or
agent of the Company, SS&C or other entity and shall inure to
the benefit of the
Executive's heirs, executors and administrators. To the extent
permitted by
applicable law, the Company and SS&C shall advance to the
Executive all
reasonable costs and expenses incurred by Executive in connection
with a
Proceeding within twenty (20) calendar days after receipt by the
Company of a
written request for such advance. Such request shall include an
undertaking by
the Executive to repay the amount of such advance if it shall
ultimately be
determined that Executive is not entitled to be indemnified against
such costs
and expense. Neither the failure of the Company nor SS&C
(including their boards
of directors, independent legal counsel or stockholders) to have
made a
determination prior to the commencement of any proceeding
concerning payment of
amounts claimed by the Executive that indemnification of the
Executive is proper
because Executive has met the applicable standard of conduct, nor
a
determination by the Company or SS&C (including its board of
directors,
independent legal counsel or stockholders) that the Executive has
not met such
applicable standard of conduct, shall create a presumption that the
Executive
has not met the applicable standard of conduct. The Company and
SS&C agree to
continue and maintain a directors' and officers' liability
insurance policy
covering the Executive to the extent the Company and SS&C
provide such coverage
for their other executive officers. Such insurance coverage shall
be maintained
for at least six (6) years following any Change in Control.
(f) Section 409A. To the extent that the Company reasonably
determines
that any compensation or benefits payable under this Agreement are
subject to
Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code"), this
Agreement shall incorporate the terms and conditions required by
Section 409A of
the Code and Department of Treasury regulations as reasonably
determined by the
Company and the Executive. To the extent applicable, this Agreement
shall be
interpreted in accordance with Section 409A of the Code and
Department of
Treasury regulations and other interpretative guidance issued
thereunder,
including without limitation any such regulations or other such
guidance that
may be issued after the Effective Date. Notwithstanding any
provision of this
Agreement to the contrary, in the event that following the
Effective Date the
Company reasonably determines that any compensation or benefits
payable under
this Agreement may be subject to Section 409A of the Code and
related Department
of Treasury guidance (including such Department of Treasury
guidance as may be
issued after the Effective Date), the Company and the Executive
shall work
together to adopt such amendments to this Agreement or adopt other
policies or
procedures (including amendments, policies and procedures with
retroactive
effective), or take any other commercially reasonable actions
necessary or
appropriate to (i) exempt the compensation and benefits payable
under this
Agreement from Section 409A of the Code and/or preserve the
intended tax
treatment of the compensation and benefits provided with respect to
this
Agreement, or (ii) comply with the requirements of Section 409A of
the Code and
related Department of Treasury guidance.
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5. Payments to Executive at Termination.
(a) Consequences of Termination. If the Executive's employment
with
the Company and SS&C is terminated for any reason, the
Executive (or, in the
case of Executive's death, the Executive's estate and/or
beneficiaries) shall be
entitled to the following: (i) unpaid Base Salary through the date
of the
termination; (ii) payment of any Annual Bonus earned with respect
to a completed
fiscal year of the Company that is unpaid as of the date of
termination; and
(iii) any benefits due to Executive under any Employee Benefit Plan
and any
payments due to the Executive under any Company or SS&C policy,
program,
arrangement or agreement (including, without limitation,
reimbursement for
previously incurred expenses) (collectively, the "Accrued
Amounts").
(b) Termination Without Cause; for Good Reason; Nonrenewal by
the
Company. The Company may terminate Executive's employment without
Cause and
Executive may terminate his employment for Good Reason
(notwithstanding anything
in this Agreement to the contrary, "Good Reason" shall not exist
unless the
provisions of Section 5(f) are complied with), in each case upon
thirty 30 days
written notice, and the Executive's employment may be terminated
upon a Notice
of Nonrenewal by the Company. Upon a termination of the Executive's
employment
by the Company without Cause, as a result of the Company's Notice
of Nonrenewal,
or by the Executive for Good Reason, the Executive shall be
entitled to, subject
to the Executive's signing, within thirty (30) days following the
date the
Company provides the Executive with a Release, and not revoking a
Release, the
following:
(i) severance payments totaling the sum of 200% of the
Executive's Base Salary and 200% of Executive's Target Annual
Bonus, payable
promptly upon termination (or, if later, payment shall be made at
the earliest
time permitted under the terms of the agreements governing any
senior credit
facilities to which the Company or any of its subsidiaries may be a
party);
provided that if Executive's termination is for Good Reason due to
a reduction
in any such amount, the amount used in calculating the severance
payment shall
be that in effect prior to the event giving rise to Good
Reason;
(ii) the Executive's outstanding Options, whether or not then
exercisable, shall become exercisable with respect to 50% of the
unvested shares
subject to the Options, as determined on the date of termination,
and shall,
except with respect to the Assumed Options which will remain
exercisable in
accordance with their terms, remain exercisable for the balance of
their
ten-year terms as if no termination had occurred (subject to
earlier termination
as provided in the applicable plan, for example, in connection with
a Change in
Control);
(iii) 50% of the vesting restrictions on Restricted Shares
shall
lapse;
(iv) the Assumed Options shall become fully vested on the date
of
termination; and
(v) three years of Company paid premiums for Executive's
continuation of coverage under the Company's group medical, dental
and vision
benefit plans and, to the extent permitted under the terms of the
Company's
group medical, dental and vision benefit plans, continued coverage,
at the
Executive's cost, for the remainder of Executive's life.
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Notwithstanding anything to the contrary in this Section 5 or
Section 10, no
payments in Section 5 or Section 10 will be paid during the
six-month period
following Executive's termination of employment unless the Company
determines,
in its good faith judgment, that paying such amounts at the time or
times
indicated in such Sections would not cause Executive to incur an
additional tax
under Section 409A of the Code (in which case such amounts shall be
paid at the
time or times indicated in such Sections). If the payment of any
amounts are
delayed as a result of the previous sentence, on the first day
following the end
of the six-month period, the Company will pay Executive a lump-sum
amount equal
to the cumulative amounts that would have otherwise been previously
paid to
Executive under this Agreement. Thereafter, payments will resume in
accordance
with Section 5 and Section 10, as applicable.
(c) Termination Due to Death or Disability. The Company shall have
the
right to terminate Executive's employment as a result of
Executive's Disability
(as defined below) upon thirty 30 days written notice and
Executive's employment
shall automatically terminate upon the death of the Executive. In
the event that
Executive's employment is terminated during the Term due to
Executive's
Disability or death, Executive (or in the event of Executive's
death, his
estate) shall be entitled to subject to, in the case of Disability,
the
Executive's signing, within thirty (30) days following the date the
Company
provides the Executive with a Release, and not revoking a Release,
the following
benefit and shall not be entitled to payments or benefits under
Section 5(b):
(i) disability or death benefits (as applicable) in accordance with
the Company
or SS&C provided insurance programs and arrangements in which
Executiv