EXHIBIT 99.2
AFFILIATE AGREEMENT
PARTIES: THE PERSON NAMED AS SHAREHOLDER ON THE
SIGNATURE PAGE HERETO (the "Shareholder")
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
SUNGARD DATA SYSTEMS INC.
a Delaware corporation ("Acquiror")
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
DATE: May 6, 1999
Background: Shareholder is a shareholder and/or optionholder of, and is an
officer and/or director of, Pentamation Enterprises, Inc., a Pennsylvania
corporation (the "Company"). Acquiror, the Company and PEI Acquisition, Inc., a
Pennsylvania corporation and a wholly owned subsidiary of Acquiror ("Newco"),
have entered into an Agreement and Plan of Reorganization dated as of the date
hereof (the "Reorganization Agreement") and the related Plan of Merger dated as
of the date hereof ("Plan"), providing for the merger of Newco with and into the
Company (the "Merger"). The Reorganization Agreement contemplates that, upon
consummation of the Merger, (i) holders of shares of the common stock of the
Company will receive shares of common stock of Acquiror ("Acquiror Common
Stock") in exchange for their shares of common stock of the Company and (ii) the
Company will become a wholly owned subsidiary of Acquiror. It is accordingly
contemplated that Shareholder will receive shares of Acquiror Common Stock in
the Merger. Shareholder understands that the Acquiror Common Stock being issued
in the Merger will be issued pursuant to a registration statement on Form S-4,
and that Shareholder may be deemed an "affiliate" of the Company: (i) as such
term is defined for purposes of paragraphs (c) and (d) of Rule 145 under the
Securities Act of 1933, as amended (the "Act"); and (ii) for purposes of
determining Acquiror's eligibility to account for the Merger as a "pooling of
interests" under Accounting Series Releases 130 and 135, as amended, of the
Securities and Exchange Commission (the "SEC"), and under other applicable
"pooling of interests" accounting requirements.
Intending to be Legally Bound, in consideration of the foregoing and the
mutual agreements contained herein and in the Reorganization Agreement and the
Plan, the parties hereto agree as follows:
1. Representations and Warranties of Shareholder. Shareholder represents
and warrants to Acquiror as follows:
(a) Shareholder is the holder and "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the number
of shares of common stock of the Company set forth beneath Shareholder's
signature on the signature page hereof
(the "Company Shares"), and Shareholder has good and valid title to the Company
Shares, free and clear of any liens, pledges, security interests, adverse
claims, equities, options, proxies, charges, encumbrances or restrictions of any
nature.
(b) Shareholder has carefully read this Affiliate Agreement and, to
the extent Shareholder felt necessary, has discussed with counsel the
limitations imposed on Shareholder's ability to sell, transfer or otherwise
dispose of the Company Shares and the shares of Acquiror Common Stock that
Shareholder is to receive in the Merger (the "Acquiror Shares"). Shareholder
fully understands the limitations this Affiliate Agreement places upon
Shareholder's ability to sell, transfer or otherwise dispose of the Company
Shares and the Acquiror Shares.
(c) Shareholder understands that the representations, warranties and
covenants set forth in this Affiliate Agreement will be relied upon by Acquiror
and its counsel and accountants for purposes of determining Acquiror's
eligibility to account for the Merger as a "pooling of interests" and for
purposes of determining whether Acquiror should proceed with the Merger.
2. Representation and Warranty of Acquiror. Acquiror represents and
warrants to Shareholder that it shall make available adequate current public
information as required by Rule 144(c) promulgated by the SEC under the Act.
3. Prohibitions Against Transfer.
(a) Shareholder agrees that, during the period from the date 30 days
prior to the date of consummation of the Merger through the date on which
financial results covering at least 30 days of post-Merger combined operations
of Acquiror and the Company have been published by Acquiror (within the meaning
of the applicable "pooling of interests" accounting requirements):
(i) Shareholder shall not sell, transfer or otherwise dispose
of, or reduce Shareholder's interest in or risk relating to, (A) any capital
stock of the Company (including, without limitation, the Company Shares and any
additional shares of capital stock of the Company acquired by Shareholder,
whether upon exercise of a stock option or otherwise), except pursuant to and
upon consummation of the Merger, or (B) any option or other right to purchase
any shares of capital stock of the Company, except pursuant to and upon
consummation of the Merger; and
(ii) Shareholder shall not sell, transfer or otherwise dispose
of, or reduce Shareholder's interest in or risk relating to, (A) any shares of
capital stock of Acquiror (including without limitation the Acquiror Shares and
any additional shares of capital stock of Acquiror acquired by Shareholder,
whether upon exercise of a stock option or otherwise), or (B) any option or
other right to purchase any shares of capital stock of Acquiror.
(b) Shareholder agrees that Shareholder shall not effect any sale,
transfer or other disposition of any Acquiror Shares unless:
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(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Act;
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145(d)(1), (2) or (3) under the Act, as
evidenced by a broker's letter and a representation letter executed by
Shareholder(satisfactory in form and content to Acquiror) stating that such
requirements have been met;
(iii) counsel reasonably satisfactory to Acquiror shall have
advised Acquiror in a written opinion letter (satisfactory in form and content
to Acquiror), upon which Acquiror may rely, that such sale, transfer or other
disposition will be exempt from registration under the Act; or
(iv) an authorized representative of the SEC shall have rendered
written advice to Shareholder to the effect that the SEC would take no action,
or that the staff of the SEC would not recommend that the SEC take action, with
respect to such sale, transfer or other disposition, and a copy of such written
advice and all other related communications with the SEC shall have been
delivered to Acquiror.
4. Stop Transfer Instructions; Legend. Shareholder acknowledges and
agrees that (a) stop transfer instructions will be given to Acquiror's transfer
agent with respect to the Acquiror Shares, and (b) each certificate representing
any of such shares shall bear a legend identical or similar in effect to the
following legend (together with any other legend or legends required by
applicable state securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145(d) OF THE SECURITIES ACT OF
1933 AND "POOLING OF INTERESTS" ACCOUNTING TREATMENT APPLY
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SUCH RULE, IN ACCORDANCE WITH THE
REQUIREMENTS FOR "POOLING OF INTERESTS" ACCOUNTING TREATMENT
AND IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED AS OF
MAY 6, 1999, BETWEEN THE REGISTERED HOLDER HEREOF AND THE
ISSUER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES
OF THE ISSUER."
5. Miscellaneous Provisions.
(a) Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made by Shareholder in this Agreement
shall survive (i) the consummation of the Merger and the other Transactions and
any termination of the Reorganization Agreement.
(b) Notices. All notices, consents or other communications required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have
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been duly given when delivered personally or one (1) business day after being
sent by a nationally recognized overnight delivery service, postage or delivery
charges prepaid or five (5) business days after being sent by registered or
certified mail, return receipt requested, postage charges prepaid. Notices also
may be given by prepaid facsimile and shall be effective on the date transmitted
if confirmed within 48 hours thereafter by a signed original sent in one of the
manners provided in the preceding sentence. Notices to Acquiror shall be sent to
its address as stated on page one of this Agreement to the attention of
Acquiror's General Counsel, with a copy sent simultaneously to the attention of
Acquiror's Chief Financial Officer. Notices to Shareholder shall be sent to
Shareholder's address as stated on page one to this Agreement, with a copy sent
simultaneously to Xxxxxxx X. Xxxxxx, Esquire, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000-0000. Any party may change its address for notice and the address to which
copies must be sent by giving notice of the new addresses to the other parties
in accordance with this Section 5(b), provided that any such change of address
notice shall not be effective unless and until received.
(c) Entire Understanding. This Agreement and the other agreements
referred to herein, state the entire understanding among the parties with
respect to the subject matter hereof, and supersede all prior oral and written
communications and agreements, and all contemporaneous oral communications and
agreements, with respect to the subject matter hereof. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
(d) Waivers. Except as otherwise expressly provided herein, no waiver
with respect to this Agreement shall be enforceable unless in writing and signed
by the party against whom enforcement is sought. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by any party, and no course of
dealing between or among any of the parties, shall constitute a waiver of or
shall preclude any other for further exercise of, any right, power or remedy.
(e) Severability. If any provision of this Agreement or any part of
any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (i) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (ii) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (iii)
the invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Agreement. Each
provision of this Agreement is separable from every other provision of this
Agreement, and each part of each provision of this Agreement is separable from
every other part of such provision.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original
hereof, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one counterpart hereof.
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(g) Section Headings. Section and subsection headings in this
Agreement are for convenience of reference only, do not constitute a part of
this Agreement, and shall not affect its interpretation.
(h) References. All words used in this Agreement shall be construed
to be of such number and gender as the context requires or permits.
(i) CONTROLLING LAW. THIS AGREEMENT IS MADE UNDER, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Jurisdiction and Process. In any action between or among any of
the parties, whether arising out of this Agreement or otherwise, (a) each of the
parties irrevocably consents to the exclusive jurisdiction and venue of the
federal and state courts located in the Commonwealth of Pennsylvania, (b) if any
such action is commenced in a state court, then, subject to applicable law, no
party shall object to the removal of such action to any federal court located in
the Commonwealth of Pennsylvania, (c) each of the parties irrevocably waives the
right to trial by jury, (d) each of the parties irrevocably consents to service
of process by first class certified mail, return receipt requested, postage
prepaid, to the address at which such party is to receive notice in accordance
with Section 5(b), and (e) the prevailing parties shall be entitled to recover
their reasonable attorneys' fees and court costs from the other parties.
(k) Non-exclusivity. The rights and remedies of Acquiror hereunder
are not exclusive of or limited by any other rights or remedies which Acquiror
may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative).
(l) Bankruptcy Qualification. Each representation or warranty made in
or pursuant to this Agreement regarding the enforceability of any Contract shall
be qualified to the extent that such enforceability may be effected by
bankruptcy, insolvency and other similar Laws or equitable principles (but not
those concerning fraudulent conveyance) generally affecting creditors' rights
and remedies.
(m) Construction. The parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of
this Agreement. As used in this Agreement, the words "include" and "including"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation".
(n) Assignment; Binding Effect. Acquiror may freely assign any or all
of its rights under this Agreement, in whole or in part, to any other person or
entity without obtaining the consent or approval of Shareholder. This Agreement
and all obligations of Shareholder hereunder are personal to Shareholder and may
not be transferred or delegated by Shareholder at any time. Subject to the
preceding sentence, this Agreement will inure to the benefit of Acquiror and its
successors and assigns and will be binding upon Shareholder
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and Shareholder's representatives, executors, administrators, estate, heirs,
successors and assigns.
(o) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that Acquiror shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of proper jurisdiction, this being
in addition to any other remedy to which Acquiror is entitled at law or in
equity.
(p) Other Agreements and Independence of Obligations. Nothing in this
Agreement shall limit any of the rights or remedies of Acquiror or any of the
obligations of Shareholder under any other agreement. The covenants and
obligations of Shareholder set forth in this Agreement shall be construed as
independent of any other agreement or arrangement between the Shareholder, on
the one hand, and the Company or Acquiror, on the other. The existence of any
claim or cause of action by Shareholder against the Acquiror shall not
constitute a defense to the enforcement of any of such covenants or obligations
against Shareholder.
IN WITNESS WHEREOF, each of the undersigned has caused this Affiliate
Agreement to be executed as of the date first stated above.
SHAREHOLDER:
_____________________________________________
Print name: Xxxxx X. Xxxxx
Number of shares of common stock of
the Company (including shares underlying
options) _____________
SUNGARD DATA SYSTEMS INC.
By:__________________________________________
Print name:
Print title:
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