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EXHIBIT 10.7
SERVICE PROVIDER STOCKHOLDERS AGREEMENT
OF
SUNSHINE ACQUISITION CORPORATION
This
Service Provider Stockholders Agreement ("Agreement") is
entered
into as of this ___ day of _________, 2005, by and among Sunshine
Acquisition
Corporation, a Delaware corporation (the "Company"), Carlyle
Partners IV, L.P.,
a Delaware limited partnership ("CP IV"), CP IV Coinvestment, L.P.,
a Delaware
limited partnership ("Coinvestment", and, together with CP IV, the
"Initial
Carlyle Stockholders") and the service providers that hold shares
of Common
Stock (as defined below) or Vested Options (as defined below) that
are or become
a party hereto from time to time by executing a supplemental
signature page in
the form attached as Exhibit A hereto (each such holder and any
Permitted
Transferee of such holder, individually, a "Service Provider
Stockholder," and
collectively, the "Service Provider Stockholders"). Certain
capitalized terms
used herein without definition have the meanings ascribed to them
in Section 9
hereof.
RECITALS:
WHEREAS, on the date hereof, the Company acquired all of the
outstanding capital stock of SS&C Technologies, Inc., a
Delaware corporation
("SS&C"), pursuant to that certain Agreement and Plan of
Merger, dated as of
July 28, 2005, and amended as of August 25, 2005, by and among the
Company,
Sunshine Merger Corporation, a Delaware corporation and wholly
owned subsidiary
of the Company formed solely for purposes of the merger, and
SS&C (the "Merger
Agreement").
WHEREAS, certain Service Provider Stockholders (a) hold shares
of
common stock, par value $0.01 per share, of the Company ("Common
Stock") and/or
(b) have been or may hereafter be issued shares of Common Stock
pursuant to the
exercise by such Service Provider Stockholders of vested options to
purchase
Common Stock ("Vested Options"), which such options (i) were issued
in exchange
for vested options to purchase common stock of SS&C pursuant to
the Merger
Agreement (the "Assumed Options") or (ii) may hereafter be issued
pursuant to
any stock option plans or other employee benefit plans, in either
case, now in
effect or hereafter adopted by the board of directors of the
Company (the
"Board", and each director, a "Director") or pursuant to other
arrangements
approved by the Board (the shares of Common Stock or other shares
of capital
stock of the Company issued or that are hereafter issued to the
Service Provider
Stockholders being collectively referred to as the "Restricted
Shares" and,
together with the Vested Options, any other vested rights issued by
the Company
to the Service Provider Stockholders to acquire Common Stock or
capital stock of
the Company, the "Restricted Securities"); and
WHEREAS, the Parties hereto desire to establish herein certain
terms
and conditions upon which the Restricted Securities will be held,
including
provisions restricting the transfer of such, and providing for
other matters.
AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing and the
mutual
agreements set forth herein, and other good and valuable
consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties
hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Restrictions on Transfer.
Except for (i) Transfers effected by Service Provider
Stockholders
pursuant to the exercise of Bring-Along Rights pursuant to Section
2 by the
Carlyle Stockholders or any Transfer effected in connection with a
Company Sale
pursuant to Section 2; (ii) Transfers effected by Service Provider
Stockholders
pursuant to the exercise of Tag-Along Rights pursuant to Section 3;
(iii)
Transfers effected by Service Provider Stockholders pursuant to the
Registration
Rights Agreement, dated as of the date hereof, by and among the
Company, the
Initial Carlyle Stockholders, William C. Stone and the Service
Provider
Stockholders; and (iv) any Permitted Transfer, no Service Provider
Stockholder
shall Transfer any Restricted Securities without the prior written
approval of a
majority of the members of the Board, which such majority shall
include at least
one Director nominated by William C. Stone, for so long as he
serves as the
Chief Executive Officer of the Company. Each Service Provider
Stockholder
further agrees that, in connection with any Permitted Transfer, any
Transfer
approved by the Board or any Transfer after the IPO, such Service
Provider
Stockholder shall, if requested by the Company, deliver to the
Company an
opinion of counsel, in form and substance reasonably satisfactory
to the Company
and counsel for the Company, to the effect that such Transfer is
not in
violation of this Agreement, the Securities Act of 1933, as
amended, and the
rules and regulations promulgated thereunder (the "Securities
Act"), or the
securities laws of any state. Any purported Transfer in violation
of the
provisions of this Section 1 shall be null and void and shall have
no force or
effect. It shall be a condition to any Permitted Transfer, any
Transfer approved
by the Board (other than any Transfer pursuant to Rule 144
promulgated under the
Securities Act approved by the Board) or any Transfer after the IPO
(other than
any Transfer pursuant to Rule 144 promulgated under the Securities
Act) that the
transferee shall (i) agree to become a party to this Agreement as a
Service
Provider Stockholder and (ii) execute a signature page in the form
attached as
Exhibit A hereto acknowledging that such transferee agrees to be
bound by the
terms hereof.
Section 2. Bring-Along Rights.
(a) If on or after the earlier of (i) the second anniversary of
the
date hereof and (ii) the date that William C. Stone ceases to be
Chief Executive
Officer of the Company, one or more Carlyle Stockholders, in one
transaction or
a series of related transactions, propose to Transfer fifty percent
(50%) or
more of the outstanding shares of Common Stock to one or more
Persons other than
Affiliates, partners, members or stockholders of the Carlyle
Stockholders (each
such Person, a "Third Party Purchaser"), then such Carlyle
Stockholder(s) shall
have the right (a "Bring-Along Right") upon delivery of the
Bring-Along Notice
(defined below), but not the obligation (subject to Section 3
hereof), to
require all, but not less than all, of the Service Provider
Stockholders to
tender for purchase to the Third Party Purchaser(s), on the same
terms and
conditions as apply to the Carlyle Stockholder(s) (provided,
however, that (i)
in the event
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that the Carlyle Stockholder(s) are granted the right to appoint
any director or
directors of any Person in connection with such Transfer, the
Carlyle
Stockholder(s) shall be entitled to designate such member or
members of the
board of directors of such Person and (ii) in the event that any
portion of the
consideration payable to the Carlyle Stockholder(s) in connection
with such
Transfer is in a form other than cash, and the Third Party
Purchaser notifies
the Carlyle Stockholders that the Third Party Purchaser desires to
provide to
the Service Provider Stockholders consideration solely in cash in
lieu of the
non-cash consideration to be provided to the Carlyle
Stockholder(s), then, at
the election of the Carlyle Stockholder(s), the consideration
payable to such
Service Provider Stockholders in connection with such Transfer may
consist
solely of cash, in an amount per share equal to the fair market
value
(determined based on the manner in which the value of the non-cash
consideration
was determined in connection with such transaction) of the per
share
consideration received by the Carlyle Stockholder(s)), a number of
Restricted
Securities (including any options that vest as a result of the
consummation of
such Transfer to such Third Party Purchaser(s)) that, in the
aggregate, equal
the number derived by multiplying (A) the total number of
Restricted Securities
owned by such Service Provider Stockholder (including any options
that vest as a
result of the consummation of such Transfer to such Third Party
Purchaser(s));
by (B) a fraction, the numerator of which is the total number of
shares of
Common Stock to be sold by the Carlyle Stockholder(s) in connection
with such
transaction or series of related transactions, and the denominator
of which is
the total number of the then-outstanding shares of Common Stock
collectively
held by the Carlyle Stockholder(s); provided that the Bring-Along
Right may be
exercised by the Carlyle Stockholder(s) prior to the earlier of (i)
the second
anniversary of the date hereof and (ii) the date that William C.
Stone ceases to
be Chief Executive of the Company, if William C. Stone or any of
his Permitted
Transferees are transferring shares of Common Stock in such
transaction or
series of related transactions or consent in writing to such
exercise of the
Bring-Along Right. For purposes of this Section 2 and Section 3
hereof, the
phrase "number of Restricted Securities" held by any Person or
group of Persons
shall mean the number of Restricted Shares held by such Person or
group of
Persons plus the number of shares of Common Stock issuable upon
exercise of
Vested Options held by such Person or group of Persons.
(b) If any Carlyle Stockholder(s) elect to exercise the
Bring-Along
Right under this Section 2 with respect to the Restricted
Securities held by the
Service Provider Stockholders, then the Carlyle Stockholder owning
a majority of
the shares of Common Stock to be Transferred shall so notify each
Service
Provider Stockholder in writing (a "Bring-Along Notice"). Each
Bring-Along
Notice shall set forth: (i) the name of the Third Party
Purchaser(s) and the
number of shares of Common Stock proposed to be sold by the
Carlyle
Stockholder(s) to such Third Party Purchaser(s); (ii) the proposed
amount and
form of consideration and material terms and conditions of payment
offered by
the Third Party Purchaser(s) and a summary of any other material
terms
pertaining to the Transfer ("Third Party Terms"); and (iii) the
number of
Restricted Securities that such Service Provider Stockholder shall
be required
to sell in such Transfer (as determined in accordance with Section
2(a) above).
The Bring-Along Notice shall be given at least fifteen (15) days
before the
closing of the proposed Transfer.
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(c) Upon the giving of a Bring-Along Notice, such Service
Provider
Stockholder shall be obligated to sell such number of Restricted
Securities as
is set forth in the Bring-Along Notice on the Third Party
Terms.
(d) At the closing of the Transfer to any Third Party
Purchaser(s)
pursuant to this Section 2, the Third Party Purchaser(s) shall
remit to such
Service Provider Stockholder (i) the consideration for the total
sales price of
the Restricted Securities held by such Service Provider Stockholder
sold
pursuant hereto, minus (ii) such Service Provider Stockholder's pro
rata portion
of the consideration to be escrowed or otherwise held back, if any,
in
accordance with the Third Party Terms, minus (iii) the aggregate
exercise price
of any Vested Options being Transferred by such Service Provider
Stockholder to
such Third Party Purchaser(s), against delivery by such Service
Provider
Stockholder of (i) certificates for such Restricted Shares, duly
endorsed for
Transfer or with duly executed stock powers reasonably acceptable
to the
Company, and/or (ii) an instrument evidencing the Transfer or the
cancellation
of the Vested Options subject to the Bring-Along Right reasonably
acceptable to
the Company, and the compliance by such Service Provider
Stockholder with any
other conditions to closing generally applicable to the Carlyle
Stockholder(s)
and all other holders of Common Stock selling shares in such
transaction, which
transaction will not subject any Service Provider Stockholder to
any liability
other than (i) such Service Provider Stockholder's pro rata share
of any
liability to which the holders of Common Stock selling shares in
such
transaction are subject in connection with such liability and (ii)
liabilities
in respect of any representation, warranty or indemnity with
respect to the
title and ownership of the Restricted Securities being sold by such
Service
Provider Stockholder. In the event that the proposed Transfer of
the Common
Stock to such Third Party Purchaser is not consummated, the Bring
Along Right
shall continue to be applicable to any proposed subsequent Transfer
of the
Common Stock by any Carlyle Stockholder(s) pursuant to this Section
2.
(e) In the event that (i) any Carlyle Stockholder exercises its
rights
pursuant to this Section 2, or (ii) a Company Sale is approved by
the Board and
the holders of fifty percent (50%) or more of the then-outstanding
shares of
Common Stock, each Service Provider Stockholder shall consent to
and raise no
objections against such transaction, and if any such transaction is
structured
as a sale of stock, each Service Provider Stockholder shall take
all actions
that the Board and/or the Carlyle Stockholder(s) reasonably deem
necessary or
desirable in connection with the consummation of such transaction.
Without
limiting the generality of the foregoing, each Service Provider
Stockholder
agrees that it (i) shall consent to and raise no objections against
such
transaction; (ii) shall execute any Common Stock purchase
agreement, merger
agreement or other agreement entered into with the purchaser with
respect to
such transaction setting forth the Third Party Terms and any
ancillary agreement
(related to the Transfer of the shares or the Company Sale, but not
with respect
to employment) with respect thereto; (iii) shall vote the Common
Stock held by
such Service Provider Stockholder in favor of such transaction
(including
executing a written consent of stockholders approving such
transaction); and
(iv) shall refrain from the exercise of dissenters' appraisal
rights with
respect to such transaction. In addition, in connection with any
such Company
Sale, each holder of Vested Options agrees that, at the election of
the Board,
each outstanding Vested Option shall be terminated and converted
into the right
to receive cash consideration in connection with such
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Company Sale in an amount equal to (x) the fair market value of the
per share
consideration received in connection with such Company Sale by the
Carlyle
Stockholder(s) (which value shall, in the case of any non-cash
consideration, be
determined based on the manner in which the fair market value of
such non-cash
consideration was determined in connection with such Company Sale),
less (y) the
exercise price of such Vested Option and any applicable withholding
taxes.
(f) If the Company or the holders of the Company's securities
enter
into any negotiation or transaction for which Rule 506 (or any
similar rule then
in effect) promulgated under the Securities Act may be available
with respect to
such negotiation or transaction (including a merger, consolidation,
or other
reorganization), each Service Provider Stockholder shall, if
requested by the
Company, appoint a purchaser representative (as such term is
defined in Rule 501
of the Securities Act) reasonably acceptable to the Company. If
such purchaser
representative was designated by the Company, the Company shall pay
the fees of
such purchaser representative, but if any Service Provider
Stockholder appoints
another purchaser representative, such Service Provider Stockholder
shall be
responsible for the fees of the purchaser representative so
appointed.
(g) Each Service Provider Stockholder shall bear its pro rata share
of
the costs of any Company Sale or other transaction (pursuant to
this Agreement
or otherwise) in which it sells Restricted Securities to the extent
such costs
are incurred for the benefit of all holders of Restricted
Securities and are not
otherwise paid by the Company or the acquiring party.
Section 3. Tag-Along Right.
(a) In the
event that any Carlyle Stockholder(s) propose to Transfer
capital stock of the Company to a Third Party Purchaser, then each
Service
Provider Stockholder shall have the right (the "Tag-Along Right")
to request
that the proposed Third Party Purchaser purchase from such Service
Provider
Stockholder up to the number of whole Restricted Securities equal
to the number
derived by multiplying (x) the total number of shares of Common
Stock that the
proposed Third Party Purchaser has agreed or committed to purchase
plus the
total number of shares of Common Stock that are issuable upon
conversion,
exercise or exchange of Vested Options or Convertible Securities
that the
proposed Third Party Purchaser has agreed or committed to purchase,
by (y) a
fraction, the numerator of which is the total number of Restricted
Securities
(including any options that vest as a result of the consummation of
such
Transfer to such Third Party Purchaser but excluding (i) shares
issuable upon
the exercise of unvested options and (ii) any Vested Options that
have an
exercise price per share of Common Stock greater than the price per
share of
Common Stock to be paid by the Third Party Purchaser) owned by such
Service
Provider Stockholder, and the denominator of which is the aggregate
number of
shares of Common Stock collectively owned by the Carlyle
Stockholders, such
Service Provider Stockholder and all other holders of Common Stock
plus the
aggregate number of shares of Common Stock issuable upon
conversion, exercise or
exchange of Vested Options and Convertible Securities (excluding
(i) shares
issuable upon the exercise of unvested options and (ii) any Vested
Options or
other Convertible Securities that have an exercise or conversion
price per share
of Common Stock greater than the price per shares of Common Stock
to be paid
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by the Third Party Purchaser) owned by all Carlyle Stockholder(s),
such Service
Provider Stockholder and all other holders of Common Stock, Vested
Options, or
other Convertible Securities. Any Restricted Securities purchased
from the
Service Provider Stockholders pursuant to this Section 3(a) shall
be purchased
at the same price per share of Common Stock (less, in the case of a
Vested
Option, the exercise price thereof) and upon the same terms and
conditions as
such proposed Transfer by the Carlyle Stockholder(s) (provided,
however, that
(i) in the event that the Carlyle Stockholder(s) are granted the
right to
appoint any director or directors of any Person in connection with
such
Transfer, the Carlyle Stockholder(s) shall be entitled to designate
such member
or members of the board of directors of such Person and (ii) in the
event that
any portion of the consideration payable to the Carlyle
Stockholder(s) in
connection with such Transfer is in a form other than cash, and the
Third Party
Purchaser notifies the Carlyle Stockholder(s) that the Third Party
Purchaser
desires to provide to the Service Provider Stockholders exercising
their rights
under this Section 2 consideration solely in cash in lieu of the
non-cash
consideration to be provided to the Carlyle Stockholder(s), then,
at the
election of the Carlyle Stockholder(s), the consideration payable
to such
Service Provider Stockholders in connection with such Transfer may
consist
solely of cash, in an amount per share equal to the fair market
value
(determined based on the manner in which the value of the non-cash
consideration
was determined in connection with such transaction) of the per
share
consideration received by the Carlyle Stockholder(s)).
(b) The Carlyle Stockholder(s) shall notify each Service
Provider
Stockholder in writing in the event such Carlyle Stockholder(s)
propose to make
a Transfer or series of Transfers giving rise to the
