EXHIBIT E
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TENDER AND VOTING AGREEMENT
This Tender and Voting Agreement, dated as of February 4, 2003 (this
"Agreement"), is made by and among SUNGARD DATA SYSTEMS INC., a Delaware
corporation ("Parent"), LAKE ACQUISITION CORP. INC., a Florida corporation
and a wholly owned subsidiary of Parent ("Acquisition Sub") and
CONSTELLATION SOFTWARE, INC., a shareholder (the "Shareholder") of H.T.E.,
Inc., a Florida corporation (the "Company").
WITNESSETH:
WHEREAS Parent, Acquisition Sub and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as it may be
amended from time to time, the "Merger Agreement"; capitalized terms used
and not otherwise defined in this Agreement have the respective meanings
ascribed to such terms in the Merger Agreement), pursuant to which (i)
Acquisition Sub shall commence a cash tender offer (as such tender offer
may hereafter be amended from time to time in accordance with the Merger
Agreement, the "Offer") to acquire all of the issued and outstanding shares
of common stock, par value $0.01 per share, of the Company ("Common Stock")
in exchange for $7.00 per share in cash (the "Offer Price") in accordance
with and subject to the terms and conditions of the Merger Agreement and
the Offer; and (ii) following consummation of the Offer, Acquisition Sub
shall merge with and into the Company (the "Merger");
WHEREAS, the Shareholder is the record and beneficial owner of
1,603,100 shares of Common Stock (all such shares of Common Stock and any
shares of Common Stock hereafter acquired by such Shareholder, including
upon exercise of any Company Option but excluding any shares of Common
Stock issuable pursuant to any option exercise unless and until such shares
are issued by the Company, the "Shares");
WHEREAS, as a condition to entering into the Merger Agreement and
incurring the obligations set forth therein, including the Offer, Parent
and Acquisition Sub have required that the Shareholder agrees to enter into
this Agreement; and
WHEREAS, the Shareholder wishes to induce Parent and Acquisition Sub
to enter into the Merger Agreement and, therefore, the Shareholder is
willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
TENDER OF SHARES
SECTION 1.01 Tender of Shares. Shareholder hereby agrees, from and
after the date hereof and until the earlier of (x) the Effective Time or
(y) the termination of the Merger Agreement pursuant to its terms (such
earlier date, the "Termination Date") to promptly (and, in any event, not
later than five (5) business days after commencement of the Offer) tender
or cause to be tendered into the Offer, pursuant to and in accordance with
the terms of the Offer, and not withdraw or cause to be withdrawn (except
following the termination of the Offer in accordance with its terms), all
of such Shareholder's Shares. Shareholder acknowledges and agrees that
Acquisition Sub's obligation to accept for payment shares of Common Stock
in the Offer, including any Shares tendered by the Shareholder, is subject
to the terms and conditions of the Merger Agreement and the Offer.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01 Voting Agreement. Shareholder hereby agrees that, from
and after the date hereof and until the Termination Date: (a) at any
meeting of the shareholders of the Company, however called, it will cause
the Shares such Shareholder benefically owns to be counted as present (or
absent if requested by Parent or Acquisition Sub) thereat for purposes of
establishing a quorum and (b) at any meeting of the shareholders of the
Company, however called, and in any action by consent of the shareholders
of the Company, Shareholder shall vote (or cause to be voted) all of
Shareholder's Shares (i) in favor of the approval and adoption of the
Merger Agreement, the Merger and all the transactions contemplated by the
Merger Agreement and this Agreement and otherwise in such manner as may be
necessary to consummate the Merger; (ii) against any action, proposal,
agreement or transaction that would result in a breach of any covenant,
obligation, agreement, representation or warranty of the Company under the
Merger Agreement or of Shareholder contained in this Agreement; and (iii)
against any action, agreement, transaction (other than the Merger Agreement
or the transactions contemplated thereby) or proposal (including any
Acquisition Proposal) that could reasonably be expected to result in any of
the conditions to the Offer or to the Company's obligations under the
Merger Agreement not being fulfilled or that is intended, or could
reasonably be expected, to impede, interfere, delay, discourage or
adversely affect the Merger Agreement, the Offer, the Merger or this
Agreement. Any vote by such Shareholder that is not in accordance with this
Section 2.01 shall be considered null and void.
SECTION 2.02 Irrevocable Proxy. Pursuant to Section 607.0722 of the
Florida Business Corporation Act (the "FBCA"), Shareholder herby
irrevocably constitutes and appoints Parent, Xxxxxxxx X. Xxxxx and Xxxxxxx
X. Xxxxxx from and after the date hereof and until the Termination Date (at
which point such constitution and appointment shall automatically be
revoked) as Shareholder's attorney, agent and proxy (such constitution and
appointment, the "Irrevocable Proxy"), with full power of substitution, to
vote and otherwise act with respect to all Shareholder's Shares at any
meeting of the shareholders of the Company (whether annual or special and
whether or not an adjourned or postponed meeting), however called, and in
any action by written consent of the shareholders of the Company, on the
matters and in the manner specified in Section 2.01. Without limiting the
foregoing, in any such vote or other action pursuant to such proxy, neither
Parent nor any other person listed in the immediately preceding sentence
shall in any event have the right (and such proxy shall not confer the
right) to vote against the Merger or to vote to reduce the Offer Price.
THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID
AND BINDING ON ANY PERSON TO WHOM A SHAREHOLDER MAY TRANSFER ANY OF ITS
SHARES IN BREACH OF THIS AGREEMENT. THIS PROXY AND POWER OF ATTORNEY SHALL
BE VALID DURING THE TERM OF THIS AGREEMENT, REGARDLESSS OF WHETHER SUCH
TERM EXCEEDS ELEVEN (11) MONTHS. Shareholder hereby revokes all other
proxies and powers of attorney with respect to all Shareholder's Shares
that may have heretofore been appointed or granted, and no subsequent proxy
or power of attorney shall be given (and if given, shall not be effective)
by Shareholder with respect to Shareholder's Shares. To the extent
permitted under applicable law, all authority herein conferred or agreed to
be conferred shall survive the death or incapacity of Shareholder and any
obligation of Shareholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of Shareholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent and to
Acquisition Sub as follows:
SECTION 3.01 Organization and Authority of Shareholder. Shareholder is
duly formed, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all necessary power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Shareholder and the performance by Shareholder of
Shareholder's obligations hereunder have been duly authorized by all
requisite action on the part of Shareholder. This Agreement has been duly
and validly executed and delivered by each Shareholder and (assuming due
authorization, execution and delivery by Parent and Acquisition Sub) this
Agreement constitutes a legal, valid and binding obligation of Shareholder
enforceable against Shareholder in accordance with its terms, except as
limited by bankruptcy, insolvency and other similar Laws or equitable
principles (but not those concerning fraudulent conveyance) generally
affecting creditors' rights and remedies.
SECTION 3.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Shareholder does
not, and the performance of this Agreement by Shareholder will not, (i)
conflict with or violate any agreement to which Shareholder is a party, any
trust agreement or any equivalent organizational documents, as the case may
be, of Shareholder, (ii) conflict with or violate any Law applicable to
Shareholder or by which any property or asset of Shareholder is bound or
affected or (iii) result in any breach of, or constitute a default (or
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of an Encumbrance on any
Shares (other than pursuant to this Agreement) pursuant to, any note, bond,
mortgage, indenture, pledge, contract, agreement, lease, license, permit,
franchise or other instrument or obligation of Shareholder, except, with
respect to clauses (ii) and (iii) above, for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent
or materially delay the ability of Shareholder to carry out Shareholder's
obligations under this Agreement.
(b) The execution and delivery of this Agreement by Shareholder does
not, and the performance of this Agreement by Shareholder will not, require
any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Body, except (i) for applicable
requirements, if any, of the Exchange Act and state securities or "blue
sky" laws, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would
not prevent or materially delay the ability of such Shareholder to carry
out Shareholder's obligations under this Agreement; provided, however,
that, anything to the contrary notwithstanding contained in this Section
3.02(b), Shareholder makes no representations regarding any consents,
approvals, authorizations, permits, filings or notifications that may be
required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976
upon the execution, delivery or performance of this Agreement or the Merger
Agreement.
SECTION 3.03 Ownership of Shares. As of the date hereof, Shareholder
is the record or beneficial owner (as defined in Rule 13d-3 under the
Exchange Act, which meaning will apply for all purposes of this Agreement)
of, and has good, valid and marketable title to, the number of Shares set
forth on the first page of this Agreement. Such Shares are all the
securities (as defined in Section 3(a)(10) of the Exchange Act, which
definition will apply for all purposes of this Agreement) of the Company
owned of record and beneficially by Shareholder as of the date hereof and
Shareholder does not have any option or other right (including, without
limitation, any Company Option) to acquire any other securities of the
Company. The Shares owned by Shareholder are owned free and clear of all
Encumbrances, other than any Encumbrances created by this Agreement. Except
as provided in this Agreement, Shareholder has not appointed or granted any
proxy, which appointment or grant is still effective, with respect to the
Shares owned by Shareholder.
SECTION 3.04 Reliance by Parent and Acquisition Sub. Shareholder
understands and acknowledges that Parent is entering into, and causing
Acquisition Sub to enter into, the Merger Agreement in reliance upon
Shareholder's execution, delivery and performance of this Agreement.
SECTION 3.05 No Finder's Fees. Other than as described in Section 3.28
of the Company Disclosure Letter with respect to arrangements made by the
Company with Broadview International, LLC, no broker, finder, investment
banker or financial advisor is entitled to any brokerage, finder's,
financial advisor's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Merger Agreement based
upon arrangements made by or on behalf of Shareholder that is or will be
payable by Parent, Acquisition Sub, the Company or any of their respective
Subsidiaries.
SECTION 3.06 Absence of Litigation. As of the date of this Agreement,
there is no litigation, suit, claim, action, proceeding or investigation
pending or, to the knowledge of Shareholder, threatened against
Shareholder, or any property or asset of Shareholder, before any
Governmental Body that seeks to delay or prevent the consummation of the
transactions contemplated by this Agreement or the Merger Agreement.
ARTICLE IV
COVENANTS OF SHAREHOLDER
Shareholder hereby agrees, from and after the date hereof and until
the Termination Date, as follows:
SECTION 4.01 No Disposition or Encumbrance of Shares. Shareholder
hereby agrees that, except as contemplated by this Agreement, Shareholder
shall not (i) sell, transfer, tender (except into the Offer), pledge,
assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to
(other than the Irrevocable Proxy), deposit into any voting trust, enter
into any voting agreement, or create or permit to exist any Encumbrances of
any nature whatsoever (other than pursuant to this Agreement) with respect
to, any of Shareholder's Shares (or agree or consent to, or offer to do,
any of the foregoing), or (ii) take any action that would make any
representation or warranty of Shareholder herein untrue or incorrect or
have the effect of preventing, delaying or disabling Shareholder from
performing Shareholder's obligations hereunder.
SECTION 4.02 No Solicitation of Transactions. Shareholder shall not,
directly or indirectly, through any Representative, or otherwise, (i)
solicit, initiate, facilitate or encourage, directly or indirectly, any
inquiries relating to, or the submission of, any Acquisition Proposal, (ii)
participate in any discussions or negotiations regarding any Acquisition
Proposal, or in connection with any Acquisition Proposal, or furnish to any
Person any information or data with respect to or provide access to the
properties of the Company or any of its Subsidiaries, or take any other
action to facilitate the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal or (iii) enter
into any agreement with respect to any Acquisition Proposal or approve or
resolve to approve any Acquisition Proposal. Except as otherwise provided
by Section 5.3(b) of the Merger Agreement, Shareholder shall, and shall
direct or cause Shareholder's Representatives to, immediately cease any
existing activities, discussions or negotiations with any Person conducted
heretofore with respect to any of the foregoing actions described in (i),
(ii) and (iii) of this Section 4.02.
SECTION 4.03 Cooperation. Shareholder agrees to cooperate fully with
Parent and Acquisition Sub and to execute and deliver such further
documents, certificates, agreements and instruments and to take such other
actions as may be reasonably requested by Parent or Acquisition Sub to
evidence or reflect the transactions contemplated by this Agreement and to
carry out the intent and purposes of this Agreement. Shareholder authorizes
Parent to deliver a copy of this Ageement to the secretary or other officer
of the Company authorized to tabulate votes.
SECTION 4.04 Information for Offer Documents and Proxy Statement;
Disclosure. Shareholder covenants and agrees that none of the information
relating to Shareholder that has been or will be furnished to Parent by
Shareholder for inclusion in the Schedule 14D-9, the Offer Documents or, if
applicable, the Proxy Statement will, at (i) the time the Schedule 14D-9,
the Offer Documents or the Proxy Statement (or any amendment or supplement
thereto) is first filed with the SEC or mailed to shareholders of the
Company or (ii) the time of the Company Shareholders' Meeting (in the case
of information included in the Proxy Statement), contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Shareholder agrees to permit Parent, Acquisition Sub and the Company to
publish and disclose in the Offer Documents and, if applicable, the Proxy
Statement and any related filings under applicable securities Laws
Shareholder's identity and ownership of Shares and the nature of its
commitments, arrangements and understandings under this Agreement and any
other information regarding Shareholder as required by applicable Laws.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Termination. This Agreement shall automatically terminate
on the earlier of (i) the Effective Time or (ii) the termination of the
Merger Agreement in accordance with its terms. Upon termination of this
Agreement as contemplated herein, Shareholder's obligation under the voting
agreement, Irrevocable Proxy and all other obligations contemplated
hereunder shall be terminated.
SECTION 5.02 Legending of Certificates; Nominees Shares; Stop
Transfer. Upon request by Parent, Shareholder agrees to submit to Parent
contemporaneously with or promptly following execution of this Agreement
all certificates representing its Shares so that Parent may note thereon a
legend refer to the rights granted to it under this Agreement. If any of
the Shares beneficially owned by a Shareholder are held of record by a
brokerage firm in "street name" or in the name of any other nominee (a
"Nominee," and, as to Shares, "Nominee Shares"), such Shareholder agrees
that, upon written request by Parent, Shareholder will within five (5) days
of such request execute and deliver to Parent a limited power of attorney,
in form and substance reasonably satisfactory to Parent, enabling Parent to
require such Nominee to (i) enter into an agreement to the same effect as
Article II hereof with respect to the Nominee Shares held by such Nominee,
(ii) tender such Nominee Shares in the Offer pursuant to Section 1.01
hereof and (iii) submit to Parent the certificates representing such
Nominee Shares for notation of the above-referenced legend thereon. If this
Agreement is terminated under Section 5.01(ii), Parent and/or Acquisition
Sub shall return, or shall cause Paying Agent to return, all certificates
representing Shareholder's Shares directly to Shareholder within five (5)
business days of such termination and any legend placed on the certificates
in respect of this Agreement shall be deemed of no force and effect and may
be removed by Shareholder upon request to the transfer agent.
SECTION 5.03 Disclosure. Shareholder shall consult with Parent before
issuing any press release or otherwise making any public statement with
respect to this Agreement or the Merger Agreement or the transactions
contemplated hereby or thereby. Without limiting the generality of the
foregoing, each Shareholder shall not, and shall not permit any of its
Representatives to, make any disclosure to employees of any of the Acquired
Companies, to the public or otherwise regarding this Agreement or the
Merger Agreement unless (a) Parent shall have been given the opportunity to
review and comment upon such disclosure and shall have approved such
disclosure or (b) Shareholder shall have been advised in writing by its
outside legal counsel that such disclosure is required by applicable law.
Each of Parent and Acquisition Sub hereby confirms that it shall make all
filings required to be made by it under the Exchange Act in connection with
the transactions contemplated by this Agreement and the Merger Agreement.
SECTION 5.04 Adjustments.
(a) In the event (i) of any increase or decrease or other change in
the Shares by reason of stock dividend, stock split, reverse stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii)
that a Shareholder becomes the beneficial owner of any additional shares of
Common Stock or other securities of the Company, then (x) the terms of this
Agreement shall apply to the shares of capital stock and other securities
of the Company held by the Shareholders immediately following the
effectiveness of the events described in clause (i), or such Shareholder
becoming the beneficial owner thereof pursuant to clause (ii), and (y) the
Offer Price shall be equitably adjusted to reflect the impact of any event
described in clause (i).
(b) Shareholder hereby agrees to promptly notify Parent and
Acquisition Sub of the number of any new Shares or other securities
acquired by Shareholder, if any, after the date hereof.
SECTION 5.05 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or
at such other address for a party as shall be specified in a notice given
in accordance with this Section 5.05):
(a) if to Shareholder:
Constellation Software Inc.
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxx XXX 0X0
(b) if to Parent or Acquisition Sub:
SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Fax #: (000) 000-0000
with a copy to:
SunGard Data Systems Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax #: (000) 000-0000
SECTION 5.06 Amendment. This Agreement may not be amended except by an
instrument in writing signed by all the parties hereto.
SECTION 5.07 Waiver. No failure on the part of any party to exercise
any power, right, privilege or remedy under this Agreement, and no delay on
the part of any party in exercising any power, right, privilege or remedy
under this 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. No party shall
be deemed to have waived any claim arising out of this Agreement, or any
power, right, privilege or remedy under this 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 such party;
and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
SECTION 5.08 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subject matter
hereof, other than the Merger Agreement and the other agreements
contemplated thereby. Each of Parent and Acquisition Sub hereby further
acknowledge and confirm that none of the representations, warranties and
covenants made by the Company in the Merger Agreement for the benefit of
Parent and Acquisition Sub are represenations, warranties and covenants,
expressed or implied, of Shareholder.
SECTION 5.09 APPLICABLE LAW; JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR ANY OTHER
JURISDICTION, EXCEPT THAT THE FBCA SHALL GOVERN THE IRREVOCABLE PROXY. IN
ANY ACTION BETWEEN ANY OF THE PARTIES ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT: (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 STATE OF DELAWARE (AND AGREES NOT TO COMMENCE ANY SUCH
ACTION EXCEPT IN SUCH COURTS) AND IRREVOCABLY AND UNCONDITIONALLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM; (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 STATE OF DELAWARE; (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 5.05.
SECTION 5.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition
to any other remedy at law or in equity, without necessity of proof that
there is no adequate remedy at law or requirement to post any security
bond.
SECTION 5.11 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 5.12 Costs and Expenses. All costs and expenses of the parties
hereto, including fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses, whether or not the Closing shall have occurred, except
as otherwise provided in the Merger Agreement with respect to fees and
costs payable by the Company to Parent.
SECTION 5.13 Parties in Interest;Assignability. This Agreement shall
be binding upon, and shall be enforceable by and inure solely to the
benefit of, the parties hereto and their respective successors and assigns;
provided, however, that neither this Agreement nor any of Shareholder's
rights hereunder may be assigned by Shareholder without the prior written
consent of Parent, and any attempted assignment of this Agreement or any of
such rights by Shareholder without such consent shall be void and of no
effect; provided, further, that Parent may assign this Agreement to any
direct or indirect subsidiary of Parent, but such assignment shall not
relieve Parent of any of its obligations hereunder. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any
Person (other than the parties hereto) any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement except that the
Company shall be a third party beneficiary with respect to the last
sentence of Section 4.04. Any assignment prohibited under this Section
shall be null and void.
SECTION 5.14 Severability. Any term or provision of this Agreement
that is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction. If the
final judgment of a court of competent jurisdiction or other authority
declares that any term or provision hereof is invalid, void or
unenforceable, the parties agree that the court making such determination
shall have the power to reduce the scope, duration, area or applicability
of the term or provision, to delete specific words or phrases, or to
replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision.
SECTION 5.15 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
SECTION 5.16 Interpretation of Representations. Each representation
and warranty made in this Agreement or pursuant hereto is independent of
all other representations and warranties made by the same parties, whether
or not covering related or similar matters, and must be independently and
separately satisfied. Exceptions or qualifications to any such
representation or warranty shall not be construed as exceptions or
qualifications to any other representation or warranty.
SECTION 5.17 Construction.
(a) For purposes of this 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.
(b) 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.
(c) For purposes of 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."
-Signature Page Follows-
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Tender and Voting Agreement as of the day and year first above written.
SUNGARD DATA SYSTEMS INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President - Corporate
LAKE ACQUISITION CORP. INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CONSTELLATION SOFTWARE, INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: President
