Exhibit 99.3
O COMPANY AFFILIATE AGREEMENT
PARTIES: THE PERSON LISTED ON THE SIGNATURE PAGE AS THE SHAREHOLDER
("Shareholder")
SUNGARD DATA SYSTEMS INC.
a Delaware corporation ("S Company")
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
OSHAP TECHNOLOGIES LTD.
an Israeli corporation (the "Company")
00 Xxxxxxx Xxxxxx
Xxxxxxxxx 00000, Xxxxxx
DATE: March 9, 1999
BACKGROUND: Shareholder is a shareholder and/or optionholder of, and/or is an
officer and/or director of, the Company. S Company and the Company have entered
into an Agreement dated as of the date hereof (the "Agreement"), which has
attached thereto the related Plan of Arrangement ("Plan"). The Agreement
provides for the exchange of S Company Shares for Company Ordinary Shares and
Company Options as set forth in the Agreement (the "Arrangement"). The Agreement
contemplates that, upon consummation of the Arrangement, (i) holders of Company
Ordinary Shares will receive S Company Shares in exchange for their Company
Ordinary Shares and Company Options, (ii) certain holders of shares, or options
to acquire shares, of capital stock of MINT Software Technologies Ltd. ("M
Company Shares") and/or Decalog N.V. ("D Company Shares") will receive S Company
Shares in exchange for such shares of capital stock or options, and (iii) the
Company will become a wholly owned subsidiary of S Company. It is accordingly
contemplated that Shareholder will receive S Company Shares in the Arrangement.
Shareholder understands that the S Company Shares being issued in the
Arrangement or otherwise 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 S Company's eligibility to account for the Arrangement as a "pooling
of interests" under XXX Xx. 00, 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. All terms not defined
herein shall have the meaning set forth in the Agreement.
INTENDING TO BE LEGALLY BOUND, in consideration of the foregoing and the
mutual agreements contained herein and in the Agreement, the parties hereto
agree as follows:
1. Representations and Warranties of Shareholder. Shareholder represents
and warrants to S Company and Company as follows:
(a) If Shareholder owns or holds any Company Ordinary Shares, M
Company Shares and/or D Company Shares (collectively, the "Existing Shares"),
Shareholder is the holder and "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) of such Existing Shares.
(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 Existing Shares and the S Company Shares that Shareholder is to
receive in the Arrangement. Shareholder fully understands the limitations this
Affiliate Agreement places upon Shareholder's ability to sell, transfer or
otherwise dispose of the Existing Shares and the S Company Shares.
(c) Shareholder understands that the representations, warranties and
covenants set forth in this Affiliate Agreement will be relied upon by S Company
and the Company and their respective counsel and accountants for purposes of
determining S Company's eligibility to account for the Arrangement as a "pooling
of interests" and for purposes of determining whether S Company and the Company
should proceed with the Arrangement.
2. Representation and Warranty of S Company. S Company represents,
warrants to, and covenants with, Shareholder that it shall make available
adequate current public information as required by Rule 144(c) promulgated by
the SEC under the Act. From and after the time that financial results covering
at least 30 days of post-Arrangement combined operations of S Company and the
Company have been published by S Company (within the meaning of the applicable
"pooling of interests" accounting requirements), S Company shall confirm, at the
request of Shareholder, that such financial results have been so published.
3. Prohibitions Against Transfer.
(a) Shareholder agrees that, during the period from the date 30 days
prior to the date of consummation of the Arrangement through the earlier of (i)
the date on which financial results covering at least 30 days of
post-Arrangement combined operations of S Company and the Company have been
published by S Company (within the meaning of the applicable "pooling of
interests" accounting requirements) and (ii) the date the Agreement is
terminated in accordance with its terms:
(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, M Company or D Company (including, without limitation, the
Existing Shares and any additional shares of capital stock of the Company, M
Company or D Company acquired by Shareholder, whether upon exercise of a stock
option or otherwise), except (x) pursuant to and upon
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consummation of the Arrangement or the other transactions contemplated by the
Agreement, or (y) except in a manner consistent with pooling of interests
accounting treatment, after obtaining the consent of S Company, which such
consent shall not be unreasonably withheld or delayed, or (B) any option or
other right to purchase any Existing Shares, except (x) pursuant to and upon
consummation of the Arrangement or the other transactions contemplated by the
Agreement, or (y) except in a manner consistent with pooling of interests
accounting treatment, after obtaining the consent of S Company, which such
consent shall not be unreasonably withheld or delayed; and
(ii) Shareholder shall not sell, transfer or otherwise dispose of, or
reduce Shareholder's interest in or risk relating to, (A) any S Company Shares
(including without limitation the S Company Shares and any additional S Company
Shares acquired by Shareholder, whether upon exercise of a stock option or
otherwise), or (B) any option or other right to purchase any S Company Shares.
(b) Shareholder agrees that Shareholder shall not effect any sale, transfer
or other disposition of any S Company Shares unless:
(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 under the Act, as evidenced by a broker's
letter and a representation letter executed by Shareholder (reasonably
satisfactory in form and content to S Company) stating that such requirements
have been met;
(iii) counsel reasonably satisfactory to S Company shall have advised S
Company in a written opinion letter (reasonably satisfactory in form and content
to S Company), upon which S Company 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 S Company.
4. Stop Transfer Instructions; Legend. Shareholder acknowledges and agrees
that (a) appropriate stop transfer instructions will be given to the S Company's
transfer agent with respect to the S Company 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
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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 MARCH __, 1999, BETWEEN THE REGISTERED HOLDER
HEREOF AND THE ISSUER, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICES OF THE ISSUER."
At the request of Shareholder, S Company shall remove the
legend at any time that S Company Shares may be disposed under Rule 145 under
the Securities Act without restriction.
5. Miscellaneous Provisions.
(a) Survival of Representations, Warranties and Agreements.
All representations, warranties and agreements made by Shareholder in this
Affiliate Agreement shall survive the consummation of the Arrangement and the
other related transactions but not any termination of the Agreement; provided,
however, that nothing in this Section 5(a) shall relieve Shareholder from
liability after the termination of the Agreement for any breach on or prior to
the termination of the Agreement of any representation, warranty or agreement
made by Shareholder in this O Company Affiliate Agreement.
(b) Notices. All notices, consents or other communications
required or permitted to be given under this Affiliate Agreement shall be in
writing and shall be deemed to have been duly given when delivered personally or
two (2) business days 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 air 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 S Company shall be sent to its address as stated
on page one of this Agreement to the attention of S Company's General Counsel,
with a copy sent simultaneously to the attention of S Company's Chief Financial
Officer and to Blank Rome Xxxxxxx & XxXxxxxx LLP, Xxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esquire. Notices to
Shareholder shall be sent to Shareholder's address as stated on the signature
page to this Agreement, with a copy sent simultaneously to Meitar, Liquornik,
Geva & Co., 00 Xxxxx Xxxxxx Xxxxxx Xx., Xxxxx-Xxx 00000, Israel, Attention: Xxx
Xxxxxxx, except that in the case of the Star Funds, to Goldfarb, Levy, Eran &
Co., Xxxxxx Xxxxx, 0 Xxx Xxxxxx Xxxxxx, Xxx Xxxx 00000, Israel, Facsimile No.:
972-3-695-4344, Attention: Xxxx Xxxx. 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 Affiliate 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
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all contemporaneous oral communications and agreements, with respect to the
subject matter hereof. This Affiliate 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 Affiliate 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 Affiliate 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 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.
(f) Counterparts. This Affiliate 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 Affiliate
Agreement to produce or account for more than one counterpart hereof.
(g) Section Headings. Section and subsection headings in this Affiliate
Agreement are for convenience of reference only, do not constitute a part of
this Affiliate Agreement, and shall not affect its interpretation.
(h) References. All words used in this Affiliate Agreement shall be
construed to be of such number and gender as the context requires or permits.
(i) CONTROLLING LAW. 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.
(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,
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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 air
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 S Company hereunder are not
exclusive of or limited by any other rights or remedies which S Company 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 Affiliate 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 Affiliate
Agreement. As used in this Affiliate 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. S Company 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 Shareholder. This
Affiliate 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 Affiliate Agreement will inure to the
benefit of S Company and its successors and assigns and will be binding upon
Shareholder 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 Affiliate Agreement
was not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that S Company shall be entitled to an
injunction or injunctions to prevent breaches of this Affiliate 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 S Company is
entitled at law or in equity.
(p) Other Agreements and Independence of Obligations. Nothing in this
Affiliate Agreement shall limit any of the rights or remedies of S Company or
any of the obligations of Shareholder under any other agreement. The covenants
and obligations of Shareholder set forth in this Affiliate Agreement shall be
construed as independent of any
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other agreement or arrangement between the Shareholder, on the one hand, and the
Company or S Company, on the other. The existence of any claim or cause of
action by Shareholder against the S Company 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 O Company
Affiliate Agreement to be executed as of the date first stated above.
SUNGARD DATA SYSTEMS INC.
By:
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Name:
Title:
OSHAP TECHNOLOGIES LTD.
By:
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Name:
Title:
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[SIGNATURES TO AFFILIATE AGREEMENT CONTINUED FROM PREVIOUS PAGE]
SHAREHOLDER:
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Address:
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FACSIMILE:
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