Exhibit 99.2
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT is being executed and delivered as of October 17,
1997 by ________________________ ("Stockholder") in favor of and for the benefit
of SUNGARD DATA SYSTEMS INC., a Delaware corporation ("Parent").
RECITALS
A. Stockholder is a stockholder of, and is an officer and/or director of,
INFINITY FINANCIAL TECHNOLOGY, INC., a Delaware corporation (the "Company").
B. Parent, the Company and Information Data Inc., a Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub"), have entered into an
Agreement and Plan of Merger and Reorganization dated as of October 17, 1997
(the "Reorganization Agreement"), providing for the merger of Merger Sub 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 Parent ("Parent Common Stock") in
exchange for their shares of common stock of the Company and (ii) the Company
will become a wholly owned subsidiary of Parent. It is accordingly contemplated
that Stockholder will receive shares of Parent Common Stock in the Merger.
C. Stockholder understands that the Parent Common Stock being issued in
the Merger will be issued pursuant to a registration statement on Form S-4, and
that Stockholder may be deemed an "affiliate" of Parent: (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
Parent'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.
AGREEMENT
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents
and warrants to Parent as follows:
(a) Stockholder 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 Stockholder's
signature on the signature page hereof (the "Company Shares"), and Stockholder
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) Stockholder has carefully read this Affiliate Agreement and, to
the extent Stockholder felt necessary, has discussed with counsel the
limitations imposed on Stockholder's ability to sell, transfer or otherwise
dispose of the Company Shares and the shares of Parent Common Stock that
Stockholder is to receive in the Merger (the "Parent Shares"). Stockholder fully
understands the limitations this Affiliate Agreement places upon Stockholder's
ability to sell, transfer, or otherwise dispose of the Company Shares and the
Parent Shares.
(c) Stockholder understands that the representations, warranties and
covenants set forth in this Affiliate Agreement will be relied upon by Parent
and its counsel and accountants for purposes of determining Parent's eligibility
to account for the Merger as a "pooling of interests" and for purposes of
determining whether Parent should proceed with the Merger.
2. REPRESENTATION AND WARRANTY OF PARENT. Parent represents and warrants
to Stockholder 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) Stockholder 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 Parent and the Company have been published by Parent (within the meaning of
the applicable "pooling of interests" accounting requirements):
(i) Stockholder shall not sell, transfer or otherwise dispose
of, or reduce Stockholder'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 Stockholder, 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) Stockholder shall not sell, transfer or otherwise dispose of
or, or reduce Stockholder's interest in or risk relating to, (A)
any shares of capital stock of the Parent (including without
limitation the Parent Shares and any additional shares of capital
stock of Parent acquired by Stockholder, whether upon exercise of
a stock option or otherwise), or (B) any option or other right to
purchase any shares of capital stock of Parent.
(b) Stockholder agrees that Stockholder shall not effect any sale,
transfer or other disposition of any Parent Shares unless:
(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Act;
2.
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 under the Act, as
evidenced by a broker's letter and a representation letter executed by
Stockholder (satisfactory in form and content to Parent) stating that
such requirements have been met;
(iii) counsel reasonably satisfactory to Parent shall have advised
Parent in a written opinion letter (satisfactory in form and content
to Parent), upon which Parent 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 Stockholder 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 Parent.
4. STOP TRANSFER INSTRUCTIONS; LEGEND.
Stockholder acknowledges and agrees that (a) stop transfer
instructions will be given to Parent's transfer agent with respect to the Parent
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 OCTOBER 17, 1997, BETWEEN THE
REGISTERED HOLDER HEREOF AND THE ISSUER, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL OFFICES OF THE ISSUER."
5. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Stockholder set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or arrangement between Stockholder, on the
one hand, and the Company or Parent, on the other. The existence of any claim or
cause of action by Stockholder against the Company or Parent shall not
constitute a defense to the enforcement of any of such covenants or obligations
against Stockholder.
3.
6. SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or other
provision contained in this Affiliate Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to Parent) to: (a) a decree
or order of specific performance or mandamus to enforce the observance and
performance of such covenant, obligation or other provision; and (b) an
injunction restraining such breach or threatened breach.
7. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall limit any
of the rights or remedies of Parent under the Reorganization Agreement, or any
of the rights or remedies of Parent or any of the obligations of Stockholder
under any agreement between Stockholder and Parent or any certificate or
instrument executed by Stockholder in favor of Parent; and nothing in the
Reorganization Agreement or in any other agreement, certificate or instrument
shall limit any of the rights or remedies of Parent or any of the obligations of
Stockholder under this Affiliate Agreement.
8. NOTICES. Any notice or other communication required or permitted to be
delivered to Stockholder or Parent under this Affiliate Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery service
or by facsimile) to the address or facsimile telephone number set forth beneath
the name of such party below (or to such other address or facsimile telephone
number as such party shall have specified in a written notice given to the other
party):
IF TO PARENT:
SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
IF TO STOCKHOLDER:
____________________________
____________________________
____________________________
____________________________
9. SEVERABILITY. If any provision of this Affiliate Agreement or any part
of such provision is held under any circumstances to be invalid or unenforceable
in any jurisdiction, then (a) 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, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdictions shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other
4.
jurisdiction, and (c) 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
Affiliate Agreement. Each provision of this Affiliate Agreement is separable
from every other provision of this Affiliate Agreement, and each part of each
provision of this Affiliate Agreement is separable from every other part of such
provision.
10. APPLICABLE LAW; JURISDICTION. THIS AFFILIATE 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. In any
action between or among any of the parties, whether arising out of this
Affiliate Agreement or otherwise, (a) each of the parties irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of
the state and federal courts located in the Commonwealth of Pennsylvania; (b) if
any such action is commended in state court, then, subject to applicable law, no
party shall object to the removal of such action to any federal court located in
the Eastern District of the Commonwealth of Pennsylvania; (c) each of the
parties irrevocably waives the right to trial by jury; and (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 8.
11. WAIVER; TERMINATION. No failure on the part of Parent to exercise
any power, right, privilege or remedy under this Affiliate Agreement, and no
delay on the part of Parent in exercising any power, right, privilege or remedy
under this Affiliate Agreement, shall operate as a waiver of such power, right,
privilege or remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or of
any other power, right, privilege or remedy. Parent shall not be deemed to have
waived any claim arising out of this Affiliate Agreement, or any power, right,
privilege or remedy under this Affiliate Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Parent; and any such waiver
shall not be applicable or have any effect except in the specific instance in
which it is given. If the Reorganization Agreement is terminated, this Affiliate
Agreement shall thereupon terminate.
12. CAPTIONS. The captions contained in this Affiliate Agreement are
for convenience of reference only, shall not be deemed to be a part of this
Affiliate Agreement and shall not be referred to in connection with the
construction or interpretation of this Affiliate Agreement.
13. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Affiliate Agreement.
5.
14. ENTIRE AGREEMENT. This Affiliate Agreement, the Reorganization
Agreement, any Voting Agreement, Employment Agreement or Noncompetition
Agreement between Stockholder and Parent and any Continuity of Interest
Certificate or Irrevocable Proxy executed by Stockholder in favor of Parent
collectively set forth the entire understanding of Parent and Stockholder
relating to the subject matter hereof and thereof and supersede all other prior
agreements and understandings between Parent and Stockholder relating to the
subject matter hereof and thereof.
15. NON-EXCLUSIVITY. The rights and remedies of Parent hereunder are not
exclusive of or limited by any other rights or remedies which Parent may have,
whether at law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative).
16. AMENDMENTS. This Affiliate Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and Stockholder.
17. ASSIGNMENTS. This Affiliate Agreement and all obligations of
Stockholder hereunder are personal to Stockholder and may not be transferred or
delegated by Stockholder at any time. Parent may freely assign any or all of its
rights under this Affiliate Agreement, in whole or in part, to any other person
or entity without obtaining the consent or approval of Stockholder.
18. BINDING NATURE. Subject to Section 17, this Affiliate Agreement will
inure to the benefit of Parent and its successors and assigns and will be
binding upon Stockholder and Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
19. SURVIVAL. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the consummation
of the Merger.
Stockholder has executed this Affiliate Agreement on October 17, 1997.
________________________________
Number of shares of
common stock of the Company: __________________
6.
