EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 23, 2005
Among
SUNSHINE ACQUISITION II, INC.
SS&C TECHNOLOGIES, INC.
and
THE GUARANTORS NAMED HEREIN,
as Issuers,
and
WACHOVIA CAPITAL MARKETS, LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Initial Purchasers
11 3/4% Senior Subordinated Notes due 2013
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TABLE OF CONTENTS
Page
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1. Definitions.......................................................... 1
2. Exchange Offer....................................................... 5
3. Shelf Registration................................................... 9
4. Additional Interest.................................................. 11
5. Registration Procedures.............................................. 12
6. Registration Expenses................................................ 21
7. Indemnification and Contribution..................................... 22
8. Rules 144 and 144A................................................... 26
9. Underwritten Registrations........................................... 26
10. Miscellaneous........................................................ 27
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated November 23, 2005 (the
"Agreement") is entered into by and among Sunshine Acquisition II, Inc., a
Delaware corporation ("Sunshine"), SS&C Technologies, Inc., a Delaware
corporation (the "Company"), the guarantors listed in Schedule 1 hereto (the
"Guarantors"), and Wachovia Capital Markets, LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and Banc of America Securities LLC (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among Sunshine and the Initial Purchasers, dated as of November
17, 2005 (the "Purchase Agreement"), which provides for, among other things, the
sale by Sunshine to the Initial Purchasers of $205,000,000 aggregate principal
amount of its 11 3/4% Senior Subordinated Notes due 2013 (the "Notes"), which,
upon consummation of the Acquisition (as defined in the Purchase Agreement),
will be assumed by the Company and will be guaranteed by the Guarantors (the
"Guarantees"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and any
subsequent holder or holders of the Securities. The execution and delivery of
this Agreement is a condition to the Initial Purchasers' obligation to purchase
the Securities under the Purchase Agreement.
References herein to "Securities" shall mean, collectively, the Notes
and the Guarantees. References herein to "Issuer" shall mean (x) prior to the
consummation of the Acquisition, Sunshine and (y) from and after consummation of
the Acquisition, the Company. References herein to "Issuers" shall mean (x)
prior to the consummation of the Acquisition, Sunshine and (y) from and after
consummation of the Acquisition, the Company and the Guarantors.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereto.
Advice: See the last paragraph of Section 5 hereto.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereto.
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Blackout Period: See Section 3(d) hereto.
Business Day: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
Buyer-Parent: Sunshine Acquisition Corporation, a Delaware
corporation.
Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to (i) the Exchange Offer
Registration Statement, the 270th day after the Issue Date and (ii) any Shelf
Registration Statement, the 120th day after the Filing Date with respect
thereto; provided, however, that if the Effectiveness Date would otherwise fall
on a day that is not a Business Day, then the Effectiveness Date shall be the
next succeeding Business Day.
Effectiveness Period: See Section 3(a) hereto.
Event Date: See Section 4 hereto.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereto.
Exchange Offer: See Section 2(a) hereto.
Exchange Offer Registration Statement: See Section 2(a) hereto.
Filing Date: The 45th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereto; provided, however, that if the Filing
Date would otherwise fall on a day that is not a Business Day, then the Filing
Date shall be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of November 23, 2005, by and among
the Sunshine, the Company, the Guarantors and ▇▇▇▇▇ Fargo Bank, National
Association, as Trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereto.
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Information: See Section 5(n) hereto.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereto.
Inspectors: See Section 5(n) hereto.
Issue Date: November 23, 2005, the date of original issuance of the
Notes.
Issuer or Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereto.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereto.
Participating Broker-Dealer: See Section 2(b) hereto.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereto.
Private Exchange Notes: See Section 2(b) hereto.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(n) hereto.
Registrable Notes: Each Note (and the related Guarantees) upon its
original issuance and at all times subsequent thereto, each Exchange Note (and
the related guarantees) as to which Section 2(c)(iv) hereto is applicable upon
original issuance and at all times subsequent
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thereto and each Private Exchange Note (and the related guarantees) upon
original issuance thereof and at all times subsequent thereto, until, in each
case, the earliest to occur of (i) a Registration Statement (other than, with
respect to any Exchange Note as to which Section 2(c)(iv) hereto is applicable,
the Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note (and the related guarantees) has been declared effective
by the SEC and such Note, Exchange Note or such Private Exchange Note (and the
related guarantees), as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Note has been exchanged
pursuant to the Exchange Offer for an Exchange Note or Exchange Notes (and the
related guarantees) that may be resold without restriction under state and
federal securities laws, (iii) such Note, Exchange Note or Private Exchange Note
(and the related guarantees), as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note (and the related guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act.
Registration Statement: Any registration statement of the Issuers that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes (and
the related Guarantees or guarantees, as the case may be) filed with the SEC
under the Securities Act, including the Prospectus, amendments and supplements
to such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The United States Securities and Exchange Commission or any
successor agency thereto.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereto.
Shelf Registration: See Section 3(b) hereto.
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Shelf Registration Statement: Any Registration Statement relating to a
Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereto.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if any)
under any indenture governing the Exchange Notes and Private Exchange Notes (and
the related guarantees).
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuers shall file with
the SEC a Registration Statement (the "Exchange Offer Registration Statement")
on an appropriate registration form with respect to a registered offer (the
"Exchange Offer") to exchange any and all of the Registrable Notes for a like
aggregate principal amount of debt securities of the Issuer (the "Exchange
Notes"), guaranteed by the Guarantors, that are identical in all material
respects to the Securities, except that (i) the Exchange Notes shall contain no
restrictive legend thereon and (ii) interest thereon shall accrue from the last
date on which interest was paid on the Notes or, if no such interest has been
paid, from the Issue Date, and which are entitled to the benefits of the
Indenture or a trust indenture which is identical in all material respects to
the Indenture (other than such changes to the Indenture or any such other trust
indenture as are necessary to comply with the TIA) and which, in either case,
has been qualified under the TIA. The Exchange Offer shall comply with all
applicable tender offer rules and regulations under the Exchange Act and other
applicable laws. The Issuers shall use their commercially reasonable efforts to
(x) cause the Exchange Offer Registration Statement to be declared effective
under the Securities Act on or before the Effectiveness Date; (y) keep the
Exchange Offer open for at least 20 Business Days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed or
otherwise transmitted to Holders; and (z) consummate the Exchange Offer on or
prior to the 300th day following the Issue Date.
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Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is
such Holder itself; (ii) at the time of the commencement or consummation of the
Exchange Offer neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act; (iii) neither the
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is an "affiliate" (as defined in Rule 405) of
the Issuers or, if it is an affiliate of the Issuers, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable and will provide information to be included in the Shelf
Registration Statement in accordance with Section 5 hereto in order to have
their Notes included in the Shelf Registration Statement and benefit from the
provisions regarding Additional Interest in Section 4 hereto; (iv) neither such
Holder nor, to the actual knowledge of such Holder, any other Person receiving
Exchange Notes from such Holder is engaging in or intends to engage in a
distribution of the Exchange Notes; and (v) if such Holder is a Participating
Broker-Dealer, such Holder has acquired the Registrable Notes as a result of
market-making activities or other trading activities and that it will comply
with the applicable provisions of the Securities Act (including, but not limited
to, the prospectus delivery requirements thereunder).
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply solely with
respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as
to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and Exchange Notes as to
which clause 2(c)(iv) hereto applies) pursuant to Section 3 hereto.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies represent the
prevailing views of the staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit, to the
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extent permitted by applicable policies and regulations of the SEC, the use of
the Prospectus by all Persons subject to the prospectus delivery requirements of
the Securities Act, including, to the extent permitted by applicable policies
and regulations of the SEC, all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Notes in compliance with the Securities Act.
The Issuers shall use their commercially reasonable efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein to the extent necessary to permit such
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law in connection with any resale of the
Exchange Notes; provided, however, that such period shall not be required to
exceed 90 days or such longer period if extended pursuant to the last paragraph
of Section 5 hereto (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Issuers upon the request of the
Initial Purchasers shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by any such Holder, a like principal amount of
notes (the "Private Exchange Notes") of the Issuers, guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail or otherwise transmit, or cause to be mailed or otherwise
transmitted, to each Holder of record entitled to participate in the
Exchange Offer a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and related documents;
(2) use their commercially reasonable efforts to keep the Exchange
Offer open for not less than 20 Business Days after the date that notice of
the Exchange Offer is mailed or otherwise transmitted to Holders (or longer
if required by applicable law);
(3) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day on which
the Exchange Offer remains open; and
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(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer and the Private Exchange,
if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Securities of such Holder so
accepted for exchange; provided that, in the case of any Securities held in
global form by a depositary, authentication and delivery to such depositary
of one or more replacement Securities in global form in an equivalent
principal amount thereto for the account of such Holders in accordance with
the Indenture shall satisfy such authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than those set forth herein that (i) the Exchange Offer or
Private Exchange, as the case may be, does not violate applicable law or any
applicable interpretation of the staff of the SEC; (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency that might materially impair the ability of the Issuers to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuers; and (iii) all governmental approvals shall have been obtained, which
approvals the Issuers deem necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture and which, in either case, has been qualified under the TIA or
is exempt from such qualification and shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture.
(c) If (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated within 300 days
of the Issue Date, (iii) the Initial Purchasers or any holder of Private
Exchange Notes so requests in writing to the Issuer at any time after the
consummation of the Exchange Offer or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state and
federal securities laws (other
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than due solely to the status of such Holder as an affiliate of the Issuers
within the meaning of the Securities Act) and so notifies the Issuer within 20
Business Days after such Holder first becomes aware of such restrictions, in the
case of each of clauses (i) to and including (iv) of this sentence, then the
Issuers shall promptly deliver to the Holders and the Trustee written notice
thereto (the "Shelf Notice") and shall file a Shelf Registration pursuant to
Section 3 hereto.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by Section
2(c) hereto, then:
(a) Shelf Registration. The Issuers shall as promptly as practicable
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Notes
(the "Initial Shelf Registration"). The Issuers shall use their
commercially reasonable efforts to file with the SEC the Initial Shelf
Registration on or prior to the applicable Filing Date. The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner
or manners designated by them (including, without limitation, one or more
underwritten offerings). The Issuers shall not permit any securities other
than the Registrable Notes and the Guarantees to be included in the Initial
Shelf Registration or any Subsequent Shelf Registration (as defined below).
The Issuers shall use their commercially reasonable efforts to cause
the Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and, subject to Section 3(d), to keep
the Initial Shelf Registration continuously effective under the Securities
Act until the date that is two years from the Issue Date or such shorter
period ending when all Registrable Notes cease to be Registrable Notes, or
all Registrable Notes covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial Shelf
Registration or, if applicable, a Subsequent Shelf Registration (as may be
extended pursuant to the last paragraph of Section 5 hereto, the
"Effectiveness Period"); provided, however, that the Effectiveness Period
in respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and shall be subject to reduction to the extent that the
applicable provisions of Rule 144(k) are amended or revised to reduce the
two year holding period set forth therein.
(b) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness Period
(other than because of the sale
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of all of the Notes registered thereunder), the Issuers shall use their
commercially reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within
45 days of such cessation of effectiveness amend such Shelf Registration
Statement in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes covered by and
not sold under the Initial Shelf Registration or an earlier Subsequent
Shelf Registration (each, a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuers shall use their
commercially reasonable efforts to cause the Subsequent Shelf Registration
to be declared effective under the Securities Act as soon as practicable
after such filing and to keep such subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration or any Subsequent Shelf Registration was
previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Issuers shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested
by the Holders of a majority in aggregate principal amount of the
Registrable Notes (or their counsel) covered by such Registration Statement
with respect to the information included therein with respect to one or
more of such Holders, or by any underwriter of such Registrable Notes with
respect to the information included therein with respect to such
underwriter.
(d) Blackout Period. Notwithstanding anything to the contrary in this
Agreement, the Issuer, upon notice to the Holders of Registrable Notes, may
suspend the use of the Prospectus included in any Shelf Registration
Statement in the event that and for a period of time (a "Blackout Period")
not to exceed an aggregate of 80 days in any twelve-month period if (1) the
Board of Directors or managers, as applicable, of the Buyer-Parent of the
Issuer determines, in good faith, that the disclosure of an event,
occurrence or other item at such time could reasonably be expected to have
a material adverse effect on the business, operations or prospects of the
Issuer or (2) the disclosure otherwise relates to a material business
transaction that has not been publicly disclosed and the Board of Directors
or managers, as applicable, of the Buyer-Parent or the Issuer determines,
in good faith, that any such disclosure would jeopardize the success of
such transaction or that disclosure of the transaction is prohibited
pursuant to the terms thereto; provided that, upon the termination of such
Blackout Period, the Issuer promptly shall notify the Holders of
Registrable Notes that such Blackout Period has been terminated.
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4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations under Section 2
or Section 3 hereto and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers agree to pay, jointly and
severally, as liquidated damages, additional interest on the Notes ("Additional
Interest") under the circumstances and to the extent set forth below (each of
which shall be given independent effect):
(i) if (A) the Initial Shelf Registration has not been filed on or
prior to the Filing Date applicable thereto or (B) notwithstanding that the
Issuers have consummated or will consummate the Exchange Offer, the Issuers
are required to file a Shelf Registration and such Shelf Registration is
not filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after any such Filing Date, Additional Interest shall
accrue on the principal amount of, and be paid to the registered Holders
of, the Registrable Notes then outstanding and affected thereby at a rate
of 0.25% per annum for the first 90 days immediately following such
applicable Filing Date, and such Additional Interest rate shall increase by
an additional 0.25% per annum at the beginning of each subsequent 90-day
period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration is declared effective by the SEC on or prior to
the Effectiveness Date applicable thereto or (B) notwithstanding that the
Issuers have consummated or will consummate the Exchange Offer, the Issuers
are required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date
applicable to such Shelf Registration, then, commencing on the day after
such Effectiveness Date, Additional Interest shall accrue on the principal
amount of, and be paid to the registered Holders of, the Registrable Notes
then outstanding and affected thereby at a rate of 0.25% per annum for the
first 90 days immediately following the day after such Effectiveness Date,
and such Additional Interest rate shall increase by an additional 0.25% per
annum at the beginning of each subsequent 90-day period; or
(iii)if (A) the Issuers have not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange Offer
on or prior to the 300th day after the Issue Date or (B) if applicable, a
Shelf Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period (other
than during any Blackout Period relating to such Shelf Registration), then
Additional Interest shall accrue on the principal amount of, and be paid to
the registered Holders of, the Registrable Notes then outstanding and
affected thereby at a rate of 0.25% per annum for the first 90 days
commencing on the (x) 301st day after the Issue Date, in the case of (A)
above, or (y) the day such Shelf
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Registration ceases to be effective in the case of (B) above, and such
Additional Interest rate shall increase by an additional 0.25% per annum at
the beginning of each such subsequent 90-day period;
provided, however, that (1) the Additional Interest rate on the Notes may not
accrue under more than one of the foregoing clauses (i) - (iii) at any one time
and at no time shall the aggregate amount of additional interest accruing exceed
in the aggregate 1.00% per annum and (2) Additional Interest shall not accrue
under clause (iii)(B) above during the continuation of a Blackout Period;
provided, further, however, that (1) upon the filing of the applicable Exchange
Offer Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the applicable
Shelf Registration Statement as required hereunder (in the case of clause (ii)
of this Section 4), or (3) upon the exchange of the Exchange Notes for all Notes
tendered (in the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration Statement that had ceased to
remain effective (in the case of (iii)(B) of this Section 4), Additional
Interest on the Notes in respect of which such events relate as a result of such
clause (or the relevant subclause thereto), as the case may be, shall cease to
accrue.
(b) The Issuers shall notify the Trustee within two Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semiannually on each June 1 and December 1 (to the
holders of record of the affected Registrable Notes on the May 15 and November
15 immediately preceding such dates), commencing with the first such date
occurring after any such Additional Interest commences to accrue. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the affected Registrable Notes,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360 day year comprised of twelve 30 day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360. No Additional Interest shall accrue with respect to Notes that are not
Registrable Notes.
(c) The parties hereto agree that the Additional Interest provided for
in this Section 4 constitutes the sole damages that will be suffered by Holders
of affected Registrable Notes by reason of the occurrence of any of the events
described in Section 4(a)(i)-(iii) hereto.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereto, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereto,
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and pursuant thereto and in connection with any Registration Statement filed by
the Issuers hereunder each of the Issuers shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Section 2 or 3 hereto, and use
their commercially reasonable efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that if (1) such filing is pursuant to Section 3 hereto
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereto is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom any
Issuer has received written notice no fewer than five Business Days prior
to the filing of such Registration Statement that it will be a
Participating Broker-Dealer in the Exchange Offer, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement (with respect to a
Registration Statement filed pursuant to Section 3 hereto) or each such
Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least two Business Days prior to such filing). The Issuers shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement,
their counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis; provided that no Additional Interest shall be
payable to any Holder of affected Registrable Notes in such event to the
extent that the obligation to pay Additional Interest results from, or
cannot be terminated as a result of, such objection by such Holders.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period, the Applicable Period or until consummation of the Exchange Offer,
as the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus; provided that, to the extent
relating to a Shelf Registration Statement, none of the foregoing shall be
required during a Blackout Period.
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(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereto,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereto is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom any
Issuer has received prior written notice that it will be a Participating
Broker-Dealer in the Exchange Offer, notify the selling Holders of
Registrable Notes (with respect to a Registration Statement filed pursuant
to Section 3 hereto), or each such Participating Broker-Dealer (with
respect to any such Registration Statement), as the case may be, their
counsel and the managing underwriters, if any, promptly (but in any event
within one Business Day), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Notes or resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Issuers contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m) hereto
cease to be true and correct, (iv) of the receipt by any Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition or any information becoming known
that makes any statement of material fact made in such Registration
Statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect and
that requires the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or documents so that, in the case
of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (vi)
of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
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(d) Use their commercially reasonable efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is
issued, to use their commercially reasonable efforts to obtain the
withdrawal of any such order at the earliest practicable moment.
(e) Subject to Section 3(d), if a Shelf Registration is filed pursuant
to Section 3 and if requested during the Effectiveness Period by the
managing underwriter or underwriters (if any), the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering or any Participating
Broker-Dealer, (i) as promptly as practicable incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereto
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereto is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes (with respect to a Registration Statement filed
pursuant to Section 3 hereto) and to each such Participating Broker-Dealer
who so requests (with respect to any such Registration Statement) and to
their respective counsel and each managing underwriter, if any, at the sole
expense of the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by reference
and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereto
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereto is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes (with respect to a Registration Statement filed
pursuant to Section 3 hereto), or each such Participating Broker-Dealer
(with respect to any such Registration Statement), as the case may be,
their respective counsel, and the underwriters, if any, at the sole expense
of the Issuers, as many copies
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of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the last paragraph of this Section 5, the Issuers hereby
consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers, if any, in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their commercially reasonable efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters reasonably request in writing;
provided, however, that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to perform
Blue Sky investigations and file registrations and qualifications required
to be filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable
Registration Statement; provided, however, that no Issuer shall be required
to (A) qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject, (C) subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject or (D) make
any changes to its certificate of incorporation or bylaws or any agreement
with its shareholders.
(i) If a Shelf Registration is filed pursuant to Section 3 hereto,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations (subject to applicable
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requirements contained in the Indenture) and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3 hereto
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereto is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereto, as promptly as
practicable (except, in the case of a Shelf Registration, during a Blackout
Period) prepare and (subject to Section 5(a) hereto) file with the SEC, at
the sole expense of the Issuers, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold thereunder
(with respect to a Registration Statement filed pursuant to Section 3
hereto) or to the purchasers of the Exchange Notes to whom such Prospectus
will be delivered by a Participating Broker-Dealer (with respect to any
such Registration Statement), any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(k) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(l) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Securities, and take all such other actions as are reasonably requested by
the managing underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Issuers
(including any acquired business, properties or entity, if applicable), and
the Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers affiliated with the Carlyle Group to
underwriters in underwritten offerings of debt securities similar to the
Securities, and confirm the same in writing if and when requested; (ii)
obtain the written opinions of counsel to the Issuers, and written updates
thereto in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions reasonably requested
in underwritten offerings; (iii) obtain "cold comfort" letters and
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updates thereto in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of the Issuers, or of any business acquired by
the Issuers, for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of debt
securities similar to the Securities; and (iv) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the sellers and underwriters, if any, than
those set forth in Section 7 hereto (or such other provisions and
procedures reasonably acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriter or underwriters or agents, if any).
The above shall be done at each closing under such underwriting agreement,
or as and to the extent required thereunder.
(m) If (1) a Shelf Registration is filed pursuant to Section 3 hereto,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereto is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for inspection
by any Initial Purchaser, any selling Holder of such Registrable Notes
being sold (with respect to a Registration Statement filed pursuant to
Section 3 hereto), or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, or underwriter (any such Initial Purchasers, Holders,
Participating Broker-Dealers, underwriters, attorneys, accountants or
agents, collectively, the "Inspectors"), upon written request, at the
offices where normally kept, during reasonable business hours, all
pertinent financial and other records, pertinent corporate documents and
instruments of the Issuers and subsidiaries of the Issuers (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuers and any of their respective
subsidiaries to supply all information ("Information") reasonably requested
by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will keep
the Records and Information confidential and that it will not disclose any
of the Records or Information that any Issuer determines, in good faith, to
be confidential and notifies the Inspectors in writing are confidential
unless (i) the release of such Records or Information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, (ii)
disclosure of such Records or Information is necessary or advisable, in the
opinion
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of counsel for any Inspector, in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iii) the
information in such Records or Information has been made generally
available to the public other than by an Inspector or an "affiliate" (as
defined in Rule 405) thereto; provided, however, that prior notice shall be
provided as soon as practicable to any Issuer of the potential disclosure
of any information by such Inspector pursuant to clause (i) of this
sentence and such Inspector shall allow the Issuers to undertake
appropriate action to prevent disclosure of such Records or Information at
the Issuers' expense.
(n) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereto, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes, to effect such changes (if any) to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use their
commercially reasonable efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable such indenture to
be so qualified in a timely manner.
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any fiscal quarter (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Issuer,
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuer (or to such
other Person as directed by the Issuer), in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, the Issuers shall ▇▇▇▇,
or cause to be marked, on such Registrable Notes that such Registrable
Notes are being cancelled in exchange
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for the Exchange Notes or the Private Exchange Notes, as the case may be;
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(q) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(r) Use their commercially reasonable efforts to take all other
reasonable steps necessary to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request, including by completing such
questionnaires as may be reasonably requested. The Issuers may exclude from such
registration the Registrable Notes of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such request;
provided that no Additional Interest shall be payable to any Holder of
Registrable Notes to the extent the obligation to pay Additional Interest
results from or cannot be terminated as a result of the failure of such Holder
to provide such information. Each seller as to which any Shelf Registration is
being effected agrees to furnish promptly to the Issuers all information
required to be disclosed in order to make the information previously furnished
to the Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that, upon actual
receipt of any notice from any Issuer (i) of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereto or
(ii) of the commencement of a Blackout Period, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement
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(other than any Exchange Offer Registration Statement in the case of a Blackout
Period) or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until (x) in the case of the
immediately preceding clause (i), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereto, or until it is advised in writing (the "Advice") by the
Issuers that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (y) in the case of
the immediately preceding clause (ii) the earlier of (A) 80 days of after the
commencement of such Blackout Period and (B) receipt of notice from the Issuer
that such Blackout Period has ended. In the event that any Issuer shall give any
such notice, each of the Applicable Period and the Effectiveness Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when the requirements of
the immediately preceding clause (x) or (y), as the case may be, shall have been
met.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or any Shelf Registration Statement is filed or becomes
effective or the Exchange Offer is consummated, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereto, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and, in the case of a Shelf Registration, reasonable
fees and disbursements of one special counsel for all of the sellers of
Registrable Notes (exclusive of any counsel retained pursuant to Section 7
hereto), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(l)(iii) hereto (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if the Issuers
desire such insurance,
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(vii) fees and expenses of all other Persons retained by the Issuers, (viii)
internal expenses of the Issuers (including, without limitation, all salaries
and expenses of officers and employees of the Issuers performing legal or
accounting duties), (ix) the expense of any annual audit, (x) any fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement.
7. Indemnification and Contribution
(a) Each of the Issuers agrees, jointly and severally, to indemnify
and hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, and each
Person, if any, who controls such Person or its affiliates within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant") against any losses, claims, damages or liabilities to which any
Participant may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities arise in
connection with any action, suit or proceeding and arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement made by any
Issuer contained in any application or any other document or any amendment
or supplement thereto executed by any Issuer based upon written information
furnished by or on behalf of any Issuer filed in any jurisdiction in order
to qualify the Notes under the securities or "Blue Sky" laws thereto or
filed with the SEC or any securities association or securities exchange
(each, an "Application");
(ii) any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus; or
(iii)the omission or alleged omission to state, in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or any Application or
any amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and will reimburse, as incurred, the Participant for any reasonable legal or
other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, (i) the
Issuers will not be liable in any such case to the extent that any such
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loss, claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or Application or any
amendment or supplement thereto in reliance upon and in conformity with
information relating to any Participant furnished to the Issuers by such
Participant specifically for use therein, and (ii) the Issuers shall not be
liable to any Participant under the indemnity agreement in this subsection (a)
with respect to a preliminary prospectus (or Prospectus before amendment or
supplement) to the extent that any such loss, claim, damage or liability of such
Participant results from the fact that such Participant sold Notes to a Person
as to whom it shall be established that there was not sent or given, at or prior
to the time of the sale of the Notes, a copy of the Prospectus (or the
Prospectus as then amended or supplemented if the Issuers shall have furnished
such Participant with copies of such amendment or supplement thereto sufficient
to allow for a timely distribution prior to the sale of the Notes to such
Participant), in any case where such delivery is required by applicable law and
the loss, claim, damage or liability of such Participant results from an untrue
statement or omission of a material fact contained in the preliminary prospectus
which was corrected in the Prospectus (or in the Prospectus as then amended or
supplemented if the Issuers shall have furnished such Participant with copies of
such amendment or supplement thereto sufficient to allow for a timely
distribution prior to the time of the sale of the Notes to such Participant).
The indemnity provided for in this Section 7 will be in addition to any
liability that the Issuers may otherwise have to the indemnified parties. The
Issuers shall not be liable under this Section 7 for any settlement of any claim
or action effected without their prior written consent, which shall not be
unreasonably withheld. The Issuers shall not, without the prior written consent
of such Participant, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Participant is or could have been
a party, or indemnity could have been sought hereunder by any Participant,
unless such settlement (A) includes an unconditional written release of the
Participants from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Participant.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Issuers, their directors and managers, as applicable, their
officers and each Person, if any, who controls the Issuers within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and all other
Holders of Registrable Notes against any losses, claims, damages or liabilities
to which the Issuers or any such director, manager, officer or controlling
person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Application,
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus, or (ii) the omission or the alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, in
-24-
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Holder,
furnished to the Issuers by such Holder, specifically for use therein; and
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses incurred by the Issuers or
any such director, manager, officer or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereto. The indemnity provided for in this Section 7 will be in addition to any
liability that the Participants may otherwise have to the indemnified parties.
The Holders shall not be liable under this Section 7 for any settlement of any
claim or action effected without their consent, which shall not be unreasonably
withheld.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 7, such indemnified party
will, if a claim in respect thereto is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement thereof
in writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified
-25-
party shall have employed separate counsel in accordance with the proviso to the
immediately preceding sentence (it being understood, however, that in connection
with such action the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to one local counsel in any
jurisdiction) in any one action or separate but substantially similar actions in
the same jurisdiction arising out of the same general allegations or
circumstances, designated by Participants who sold a majority in interest of the
Registrable Notes and Exchange Notes sold by all such Participants in the case
of paragraph (a) of this Section 7 or the Issuers in the case of paragraph (b)
of this Section 7, representing the indemnified parties under such paragraph (a)
or paragraph (b), as the case may be, who are parties to such action or actions)
or (ii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying party. All
fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed
as they are incurred following receipt of supporting documentation. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 7,
in which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party on the other from the
offering of the Notes and the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and such
Holder on the other shall be deemed to be in the same proportion as the total
proceeds from the offering (before deducting expenses) of the Notes received by
the Issuers bear to the total gain (if any) excluding expenses received by such
Holder in connection with the sale of the Notes. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
on the one hand, or the Holders on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations
-26-
referred to in the first sentence of this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Holder shall be obligated to make
contributions hereunder that in the aggregate exceed the total gain (if any)
received by such Holder in connection with the sale of the Notes, less the
aggregate amount of any damages that such Holder has otherwise been required to
pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls a Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Holders, and each director of any Issuer, each officer of any Issuer and
each Person, if any, who controls any Issuer within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, shall have the same rights
to contribution as the Issuers.
8. Rules 144 and 144A
Each of the Issuers covenants and agrees that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time such Issuer is not required to file such reports, such Issuer
will, upon the request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A.
Each of the Issuers further covenants and agrees, for so long as any Registrable
Notes remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
-27-
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers will not enter into any
agreement with respect to any of their securities that will grant to any Person
piggy-back registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. Except in compliance with
Section 10(c), the Issuers shall not, directly or indirectly, take any action
with respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes in
a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Issuer, and (II)(A) the Holders of not less than a majority
in aggregate principal amount of the then outstanding Registrable Notes and (B)
in circumstances that would adversely affect the Participating Broker-Dealers,
the Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not be amended,
modified or supplemented without the prior written consent of each Holder and
each Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereto with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement may be given by
Holders of at least a majority in aggregate principal amount of the Registrable
Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as
-28-
the case may be, set forth on the records of the registrar under the
Indenture, with a copy in like manner to the Initial Purchasers as follows:
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Initial Purchasers, at the address specified in Section
10(d)(i);
(iii) if to the Company or the Guarantors, at the address as follows:
c/o SS&C Technologies, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Sunshine Acquisition II, Inc.
c/o The Carlyle Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇
-29-
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
(iv) if to Sunshine, at the address as follows:
Sunshine Acquisition II, Inc.
c/o The Carlyle Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; provided, however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
-30-
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereto.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER
LAW.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors
-31-
in interest with respect to the subject matter hereto and thereto are merged
herein and replaced hereby.
[Signature page follows]
-32-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SUNSHINE ACQUISITION II, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SS&C TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman & CEO
FINANCIAL MODELS COMPANY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & Treasurer
FINANCIAL MODELS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & Treasurer
SS&C FUND ADMINISTRATION SERVICES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & Treasurer
[Registration Rights Agreement]
OMR SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & Treasurer
OPEN INFORMATION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & Treasurer
[Registration Rights Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ [ILLEGIBLE]
---------------------------------
Name:
-------------------------------
Title:
------------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ [ILLEGIBLE]
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[Registration Rights Agreement]
Schedule I
Guarantors
GUARANTOR STATE OF INCORPORATION OR ORGANIZATION
--------- --------------------------------------
Financial Models Company Ltd. New York
Financial Models Holdings Inc. Delaware
SS&C Fund Administration Services LLC New York
OMR Systems Corporation New Jersey
Open Information Systems, Inc. Connecticut