Exhibit B
AFFILIATE AGREEMENT
PARTIES:
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SUNGARD DATA SYSTEMS INC.
a Delaware corporation ("Acquiror")
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATE: January 15, 1999
BACKGROUND: Shareholder is a shareholder and/or optionholder of, and is an
officer and/or director of, FDP Corp., a Florida corporation (the "Company").
Acquiror, the Company and Development Corp., a Florida 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 is a limited
partner of Key Investments Ltd., a Florida partnership, (the "Partnership")
which owns certain real property used by the Company. Pursuant to that certain
Agreement of Sale dated the date hereof (the "Real Estate Agreement") by and
between the Partnership and a wholly-owned subsidiary of Acquiror ("Acquiror
Sub"), the Partnership will transfer its real property to the Acquiror Sub in
exchange for Acquiror Common Stock. Shareholder understands that the Acquiror
Common Stock being issued in the Merger and under the Real Estate Agreement will
be issued pursuant to a registration statement on Form S-4, and that Shareholder
may be deemed an "affiliate" of Acquiror: (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:
(all of such documents collectively, the "Organic Documents")
1. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder represents
and warrants to Acquiror as follows:
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(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 and under the Real Estate Agreement (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.
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(b) Shareholder agrees that Shareholder shall not effect any sale,
transfer or other disposition of any Acquiror 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
(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
JANUARY 15, 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.
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(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 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 Greenberg, Traurig, P.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esquire. 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.
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(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.
(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".
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(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 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.
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IN WITNESS WHEREOF, each of the undersigned has caused this Affiliate
Agreement to be executed as of the date first stated above.
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Number of shares of common stock of
the Company (including shares underlying
options)
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SUNGARD DATA SYSTEMS INC.
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Corporate Development
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