EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October 17, 1997, by and
between SUNGARD DATA SYSTEMS INC., a Delaware corporation ("Parent"), and
__________ ("Stockholder").
RECITALS
A. Parent, Information Data Inc., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and Infinity Financial Technology,
Inc., a Delaware corporation (the "Company"), are entering into an Agreement and
Plan of Merger and Reorganization of even date herewith (as amended from time to
time, the "Reorganization Agreement"), which provides (subject to the conditions
set forth therein) for the merger of Merger Sub into the Company (the "Merger").
B. As a condition to the willingness of Parent and Merger Sub to
enter into the Reorganization Agreement, Parent and Merger Sub have required
that Stockholder enter into, and in order to induce Parent and Merger Sub to
enter into the Reorganization Agreement Stockholder has agreed to enter into,
this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
(a) All capitalized terms used but not otherwise defined in this
Voting Agreement have the meanings ascribed to such terms in the Reorganization
Agreement.
(b) "SUBJECT SECURITIES" shall mean: (i) all securities of the Company
------------------
(including shares of Company Common Stock and all options, warrants and other
rights to acquire shares of Company Common Stock) Owned by Stockholder as of the
date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires Ownership during the period from the date of this
Agreement through the Expiration Date.
(c) Stockholder shall be deemed to "OWN" or to have acquired
---
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
---------
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Exchange Act) of such security.
1
(d) "EXPIRATION DATE" shall mean the earlier of the date upon which
the Reorganization Agreement is validly terminated or the date upon which the
Merger becomes effective.
(e) The "RECORD DATE" for a particular matter shall be the date fixed
for persons entitled: (i) to receive notice of, and to vote at, a meeting of the
stockholders of the Company called for the purpose of voting on such matter; or
(ii) to take action by written consent of the stockholders of the Company with
respect to such matter.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder covenants and agrees that, prior to the Expiration Date, Stockholder
will not, directly or indirectly, sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose of or transfer any of the Subject
Securities to any Person other than Parent (a "Transfer") unless and until the
other party to such Transfer (a "Transferee") shall have: (i) executed a
counterpart of this Voting Agreement and a proxy in the form attached hereto as
Exhibit A; and (ii) agreed to hold such Subject Securities (or interest in such
Subject Securities) subject to all of the terms and conditions of this Voting
Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder covenants and agrees
that, prior to the Expiration Date, Stockholder will not deposit any of the
Subject Securities into a voting trust or grant a proxy or enter into a voting
agreement with respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder covenants and agrees that, prior
to the earlier to occur of the valid termination of the Reorganization Agreement
or the Effective Time, at any meeting of the stockholders of the Company,
however called, and in any written action by consent of stockholders of the
Company, unless otherwise directed in writing by Parent, Stockholder shall
caused to be voted all issued and outstanding shares of Company Common Stock
that are Owned by Stockholder as of the Record Date with respect to any of the
matters referred to in this Section 3.1 in favor of the Merger, the execution
and delivery by the Company of the Reorganization Agreement and the adoption and
approval of the terms thereof and in favor of each of the other actions
contemplated by the Reorganization Agreement and any action required in
furtherance hereof or thereof.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement:
(i) Stockholder shall deliver to Parent a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law,
with respect to the shares referred to therein (the "Proxy"); and (ii)
Stockholder shall cause to be delivered to Parent an additional proxy (in the
form attached hereto as Exhibit A) executed on behalf of the record owner of any
2
issued and outstanding shares of Company Common Stock that are owned
beneficially (but are not owned of record) by Stockholder.
(b) Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Parent the power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 4. WAIVER OF APPRAISAL RIGHTS.
Stockholder hereby irrevocably and unconditionally waives any rights
of appraisal and any dissenters' rights that Stockholder may have in connection
with the Merger.
SECTION 5. NO SOLICITATION
Stockholder covenants and agrees that, during the period commencing on
the date of this Voting Agreement and ending on the Expiration Date, Stockholder
shall not, directly or indirectly, and shall not authorize or permit any
Representative of Stockholder, directly or indirectly, to: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal or take any action that could reasonably be expected to
lead to an Acquisition Proposal; (ii) furnish any information regarding any of
the Acquired Corporations to any Person in connection with or in response to an
Acquisition Proposal or potential Acquisition Proposal; or (iii) engage in
discussions with any Person with respect to any Acquisition Proposal.
Stockholder shall immediately cease any existing discussions with any Person
that relate to any Acquisition Proposal.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has all requisite power and
capacity to execute and deliver this Voting Agreement and the Proxy and to
perform his obligations hereunder and thereunder. This Voting Agreement and the
Proxy has been duly executed and delivered by Stockholder and constitutes a
legal, valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
3
6.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Voting Agreement and the Proxy
by Stockholder do not, and the performance of this Voting Agreement and the
Proxy by Stockholder will not: (i) conflict with or violate any Legal
Requirement, order, decree or judgment applicable to Stockholder or by which he
or any of his properties is bound or affected; or (ii) result in any breach of
or constitute a default (with notice or lapse of time, or both) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of an Encumbrance on any of the Subject Securities
pursuant to, any Contract to which Stockholder is a party or by which
Stockholder or any of his properties is bound or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy
by Stockholder do not, and the performance of this Voting Agreement and the
Proxy by Stockholder will not, require any Consent of any Person.
6.3 TITLE TO SUBJECT SECURITIES. As of the date hereof, Stockholder
Owns in the aggregate (including shares owned of record and shares owned
beneficially) the number of issued and outstanding shares of Company Common
Stock set forth below Stockholder's name on the signature page hereof, and the
number of options, warrants and other rights to acquire shares of Company Common
Stock set forth below Stockholder's name on the signature page hereof, and does
not directly or indirectly Own, any shares of capital stock of the Company, or
any option, warrant or other right to acquire any shares of capital stock of the
Company, other than the shares and options, warrants and other rights set forth
below Stockholder's name on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
SECTION 7. COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder will execute and deliver, or cause to be executed and
delivered, such additional or further transfers, assignments, endorsements,
proxies, consents and other instruments as Parent may reasonably request for the
purpose of effectively carrying out and furthering the intent of this Voting
Agreement.
7.2 LEGEND. Immediately after the execution of this Voting Agreement
(and from time to time prior to the Expiration Date upon the acquisition by
Stockholder of Ownership of any shares of Company Common Stock), Stockholder
shall instruct the Company to cause each certificate of Stockholder evidencing
any issued and outstanding shares of Company Common Stock Owned by Stockholder
to bear a legend in the following form:
4
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE VOTING AGREEMENT DATED AS OF OCTOBER 17, 1997, AS IT
MAY BE AMENDED, BETWEEN THE ISSUER AND _____________, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by Stockholder in this Voting
Agreement shall survive (i) the consummation of the Merger, (ii) any termination
of the Reorganization Agreement, and (iii) the Expiration Date.
8.2 INDEMNIFICATION. Stockholder shall hold harmless and indemnify
Parent from and against any Damages (regardless of whether or not such Damages
relate to a third-party claim) which are incurred by Parent and that arise from
any breach of any representation, warranty, covenant or obligation of
Stockholder contained herein.
8.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
8.4 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting 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 hereto):
if to Stockholder:
at the address set forth below Stockholder's signature on the
signature page hereto;
if to Parent:
SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
5
8.5 SEVERABILITY. Any term or provision of this Voting Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Voting Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Voting Agreement in any other jurisdiction. If any
provision of this Voting Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
8.6 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision
of this Voting Agreement shall be binding upon either party hereto unless made
in writing and signed by both parties hereto.
8.7 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by either of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party, except that
Parent may assign all or any of its rights hereunder to any wholly-owned
subsidiary of Parent. Subject to the preceding sentence, this Voting Agreement
shall be binding upon Stockholder and his heirs, successors and assigns, and
shall inure to the benefit of Parent and its successors and assigns. Without
limiting any of the restrictions set forth in Section 2 or elsewhere in this
Voting Agreement, this Voting Agreement shall be binding upon any Person to whom
any Subject Securities are transferred. Notwithstanding anything contained in
this Voting Agreement to the contrary, nothing in this Voting Agreement,
expressed or implied, is intended to confer on any Person other than the parties
hereto or their respective heirs, successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Voting Agreement.
8.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that Parent shall be entitled to
an injunction or injunctions to prevent breaches of this Voting Agreement and to
enforce specifically the terms and provisions hereof in any Delaware court or
other court of proper jurisdiction, this being in addition to any other remedy
to which Parent is entitled at law or in equity.
8.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any of
the rights or remedies of Parent or any of the obligations of Stockholder under
any Affiliate Agreement between Parent and Stockholder or under any other
agreement.
8.10 APPLICABLE LAW; JURISDICTION. This Voting Agreement shall be governed
in all respects by the laws of the State of Delaware, as applied to contracts
entered into and to be performed entirely within the State of Delaware. In any
action between the parties, whether arising out of this Voting Agreement or
otherwise: (a) each of the parties irrevocably and
6
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 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 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 8.4.
8.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
8.12 CONSTRUCTION.
(a) Headings of the Sections of this Voting Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
(b) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(c) 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 Voting Agreement.
(d) As used in this Voting 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."
(e) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
7
IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
SUNGARD DATA SYSTEMS INC.
By: ______________________________________
Xxxxxxx X. Xxxxxx
Vice President - Corporate Development
Name: ____________________________________
Address: ____________________________
Facsimile: __________________________
Number of issued and outstanding shares
of Company Common Stock owned of record
as of the date of this Voting
Agreement:
_______________________________________
Number of additional issued and
outstanding shares of Company Common
Stock owned beneficially (but not of
record) as of the date of this Voting
Agreement:
_______________________________________
8
Number of options, warrants and other
rights to acquire shares of Company
Common Stock owned of record as of the
date of this Voting Agreement:
_______________________________________
Number of additional options, warrants
and other rights to acquire shares of
Company Common Stock owned beneficially
(but not of record) as of the date of
this Voting Agreement:
_______________________________________
9
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned stockholder of Infinity Financial Technology, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx
and SunGard Data Systems Inc., a Delaware corporation ("Parent"), and each of
them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof. (The shares of the capital stock of the Company referred to in
clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares.") Upon the execution hereof, all prior proxies
given by the undersigned with respect to any of the Shares are hereby revoked,
and no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Information Data
Inc., a Delaware corporation and wholly owned subsidiary of Parent, and the
Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Reorganization Agreement.
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the Effective Time at any
meeting of the stockholders of the Company, however called, or in any written
action by consent of stockholders of the Company in favor of the Merger, the
execution and delivery by the Company of the Reorganization Agreement and the
adoption and approval of the terms thereof and in favor of each of the other
actions contemplated by the Reorganization Agreement and any action required in
furtherance hereof and thereof.
The undersigned stockholder may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Shares).
A-1
Any term or provision of this proxy which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this proxy or affecting the validity or
enforceability of any of the terms or provisions of this proxy in any other
jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate upon the Expiration Date.
Dated: October 17, 1997
_______________________________________
Name:
Number of shares of Company Common Stock
owned of record as of the date of this
proxy:
________________________________________
A-2
