<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Act of 1934
(Amendment No. ___)*
Oshap Technologies Ltd.
-----------------------
(Name of Issuer)
Common Stock, NIS 0.001 par value per share
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(Title of Class of Securities)
671039105
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(CUSIP Number)
Lawrence A. Gross
SunGard Data Systems Inc.
1285 Drummers Lane
Wayne, PA 19087
(610) 341-8700
----------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copies to:
Francis E. Dehel, Esquire
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
Telephone: (215) 569-5500
Facsimile: (215) 569-5555
March 9, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of (SS) 240.13d-1(e) or 240 13d-1(g), check the following box.
[_]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See (S) 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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- ------------------------- ---------------------------
CUSIP NO. 671039105 13D SunGard Data Systems Inc.
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- ------------------------- ---------------------------
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NAMES OF REPORTING PERSONS.
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
SunGard Data Systems Inc.
IRS Identification No. 51-0267091
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
2 (a) [_]
(b) [_]
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3
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SOURCE OF FUNDS (See Instructions) 00
4
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
5 2(d) OR 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
State of Delaware
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SOLE VOTING POWER
7
NUMBER OF
-0-
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 4,150,782
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING
-0-
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
4,150,782
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
12 (SEE INSTRUCTIONS)
[_]
See response to Item 5(a)
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
32.34%
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
14
CO
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<PAGE>
Neither the filing of this statement on Schedule 13D nor any of its
contents shall be deemed to constitute an admission by SunGard Data Systems Inc.
that it is the beneficial owner of any of the Common Stock referred to herein
for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended, or for any other purpose, and such beneficial ownership is expressly
disclaimed.
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the Ordinary Shares, NIS
0.001 par value per share (the "Oshap Ordinary Shares") of Oshap Technologies
Ltd., a corporation formed under the laws of the State of Israel ("Oshap"). The
principal executive offices of Oshap are located at Delta House 16 Hagalim
Avenue., Herzeliya, 46733 Israel.
Item 2. Identity and Background.
(a) The name of the person filing this statement is SunGard Data
Systems Inc., a Delaware corporation ("SunGard"). SunGard is in the business of
computer services and application software. SunGard is a specialized provider of
proprietary investment support systems and comprehensive computer disaster
recovery services.
(b) The address of the principal office and principal business of
SunGard is 1285 Drummers Lane, Wayne, Pennsylvania 19087.
(c) Set forth in Schedule I to this Schedule 13D is the name and
present principal occupation or employment of each of SunGard's executive
officers and directors and the name, principal business and address of any
corporation or other organization in which such employment is conducted.
(d) During the past five years, neither SunGard nor, to SunGard's
knowledge, any person named in Schedule I to this Schedule 13D, has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the past five years, neither SunGard nor, to SunGard's
knowledge, any person named in Schedule I to this Schedule 13D was a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which such person was or is subject to a judgment, decree or
final order enjoining future violations of or prohibiting or mandating activity
subject to federal or state securities laws or finding any violation with
respect to such laws.
(f) All of the directors and executive officers of SunGard named in
Schedule I to this Schedule 13D are citizens of the United States, except for
Mr. Conde, who is a citizen of Chile.
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Item 3. Source and Amounts of Funds or Other Consideration.
To facilitate the consummation of the Arrangement (as defined in Item 4
below), certain shareholders of Oshap have entered into a Voting Agreement with
SunGard as described in Item 4.
Item 4. Purpose of Transaction.
(a)-(b) Pursuant to an Agreement dated March 9, 1999 (the "Agreement")
among SunGard and Oshap, and the related Plan of Arrangement (the "Plan") which
is attached to the Agreement, and subject to the conditions set forth in the
Agreement (including (i) the expiration or early termination of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, (ii) the approval of the Agreement by the shareholders of Oshap, and
(iii) the issuance of a final court order in Israel), SunGard shall exchange
shares of common stock, $.01 par value per share (the "SunGard Common Stock") of
SunGard for all of the issued and outstanding Oshap Ordinary Shares (the
"Arrangement"). Oshap will become a wholly-owned subsidiary of SunGard and each
of the Oshap Ordinary Shares will be converted into a fraction of a share of
SunGard Common Stock, such fraction to be in a ratio (rounded to the nearest one
millionth) provided below (the "Exchange Ratio"). If the SunGard Share Average
(as defined below):
(1) is equal to or greater than $34.1063 but
less than or equal to $46.1438, the Exchange Ratio shall be fixed at 0.386293.
(2) is greater than $46.1438 but less than or
equal to $50.7074, the Exchange Ratio shall be equal to $17.8250 divided by the
SunGard Share Average.
(3) is greater than $50.7074, the Exchange Ratio
shall be equal to 0.351526.
(4) is less than $34.1063, but greater than or
equal to $30.5429, the Exchange Ratio shall be equal to $13.1750 divided by the
SunGard Share Average; and
(5) is less than $30.5429, the Exchange Ratio
shall be equal to 0.431360.
The "SunGard Share Average" means the average of the Per Share Closing
Prices for the 10 consecutive trading days ending on the second trading day
prior to the Effective Date. The "Per Share Closing Price" for any trading day
means the final closing price per share on the New York Stock Exchange, Inc. of
SunGard Common Stock (as reported on the NYSE Composite Transaction Tape) for
that day.
In addition, the Agreement provides that each outstanding option to
purchase Oshap Ordinary Shares ("Option") will be canceled in exchange for a
number of shares of SunGard Common Stock as determined pursuant to Section
2.1(b) of the Agreement.The Agreement also requires SunGard to offer to purchase
outstanding stock of MINT Software Technologies, Ltd. ("Mint") and Decalog
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N.V. ("Decalog"), subsidiaries of Oshap, which are owned by minority
shareholders and to offer to exchange outstanding options to purchase Mint and
Decalog stock for cash, SunGard Common Stock or options to purchase SunGard
Common Stock, all as provided in Section 7.1 of the Agreement.
The consummation of the Arrangement is subject to the satisfaction or
waiver of closing conditions for the benefit of both parties, closing conditions
for the benefit of SunGard and closing conditions for the benefit of Oshap, as
set forth in Sections 8.1, 8.2 and 8.3 of the Agreement, respectively. The
description contained in this Item 4 of the transactions contemplated by the
Agreement is qualified in its entirety by reference to the full text of the
Agreement, a copy of which will be filed by amendment as Exhibit 99.1 to this
Schedule 13D.
As an inducement to SunGard to enter into the Agreement, each of Shlomo
Dovrat, SRIW, S.A., Aharon Dovrat, Cramer, Rosenthal & McGlynn, LLC. ("CR&M"),
Avi Zeevi, SVE Star Ventures Enterprises No. III, SVE Star Ventures Enterprises
No. II, SVE Star Ventures Enterprises No. IIIa, and SVM Star Ventures
Managementgesellschaft mbH Nr. 3 & Co. Beteiligungs KG (individually, a "Voting
Agreement Stockholder" and, collectively, the "Voting Agreement Stockholders")
has entered into a Voting Agreement dated March 9, 1999 (the "Voting Agreement")
with SunGard. The number of Oshap Ordinary Shares and Options beneficially owned
by each of the Voting Agreement Stockholders, based on information supplied by
them, is set forth on Schedule II to this Schedule 13D. Pursuant to Section 3(a)
of the Voting Agreement, the Voting Agreement Stockholders have agreed to vote
the Oshap Ordinary Shares and Options owned by them in favor of the Arrangement,
the execution and delivery by Oshap of the Agreement and the Plan and the
adoption and approval of the terms thereof, and in favor of the other related
transactions and each of the actions contemplated by the Agreement and the Plan
and any action by Oshap reasonably required in furtherance thereof.
The Voting Agreement Stockholders have also executed and delivered to
SunGard irrevocable proxies granting SunGard the authority to vote the Oshap
Ordinary Shares and Options owned by the Voting Agreement Stockholders with
respect to the matters described above. SunGard did not pay any additional
consideration to any Voting Agreement Stockholder in connection with the
execution and delivery of the Voting Agreement or his, her or its irrevocable
proxy. The Voting Agreement Stockholders retain the right to vote their Oshap
Ordinary Shares and Options in their discretion with respect to matters other
than those identified in the Voting Agreement. The description contained in this
Item 4 of the transactions contemplated by the Voting Agreement is qualified in
its entirety by reference to the full text of the form of Voting Agreement, a
copy of which is attached to this Schedule 13D as Exhibit 99.2.
Also in connection with the Agreement, each of the Voting Agreement
Stockholders (each an "Affiliate"), other than CR&M, and other affiliates of the
Company entered into an O Company Affiliate Agreement with SunGard, dated March
9, 1999 (individually, an "Affiliate Agreement" and collectively, the "Affiliate
Agreements"). Pursuant to Section 3(a) thereof, each Affiliate has agreed that,
during the period from the date 30 days prior to the date of consummation of the
Arrangement through the earlier of the date on which financial results covering
at least 30 days of post-Arrangement combined operations of SunGard and
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<PAGE>
Oshap have been published by SunGard (within the meaning of the applicable
"pooling of interests" accounting requirements) or the date the Agreement is
terminated in accordance with its terms: (i) such Affiliate will not sell,
transfer or otherwise dispose of, or reduce such Affiliate's interest in or risk
relating to, (A) any capital stock of Oshap, Mint or Decalog (including any
additional shares of capital stock of Oshap, Mint or Decalog acquired by such
Affiliate, whether upon exercise of a stock option or otherwise), 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 SunGard, which
such consent shall not be unreasonably withheld or delayed, or (B) any option or
other right to purchase any shares of capital stock of Oshap, Mint or Decalog
except (x) pursuant to and upon consummation of the Arrangement or (y) except in
a manner consistent with pooling of interests accounting treatment, after
obtaining the consent of SunGard, which such consent shall not be unreasonably
withheld or delayed; and (ii) such Affiliate will not sell, transfer or
otherwise dispose of, or reduce such Affiliate's interest in or risk relating
to, (A) any shares of SunGard Common Stock (including without limitation any
additional shares of SunGard Common Stock acquired by such Affiliate, whether
upon exercise of a stock option or otherwise), or (B) any option or other right
to purchase any SunGard Common Stock. The Affiliates have also agreed, pursuant
to Section 3(b) of the Affiliate Agreements, not to sell, transfer or otherwise
dispose of any SunGard Common Stock, except as permitted by the Affiliate
Agreements. The description contained in this Item 4 of the transactions
contemplated by the Affiliate Agreements is qualified in its entirety by
reference to the full text of the form of Affiliate Agreement, a copy of which
is attached to this Schedule 13D as Exhibit 99.3.
As an additional inducement to SunGard to enter into the Agreement, each of
Avi Zeevi, Michel De Greef, Kenneth J. Bialkin, Meir Barel, Brian Owen, Gerald
S. Cramer, Michel Theys and Aharon Dovrat (individually, an "Option Voting
Agreement Holder" and, collectively, the "Option Voting Agreement Holders") has
entered into an Option Voting Agreement dated March 9, 1999 (the "Option Voting
Agreement") for the benefit of SunGard. The number of Options beneficially owned
by each of the Option Voting Agreement Holders, based on information supplied by
Oshap, is set forth on Schedule IV to this Schedule 13D. Pursuant to the Option
Voting Agreements, the Option Voting Agreement Holders have agreed to vote the
Options owned by them in favor of the Arrangement. The description contained in
this Item 4 of the transactions contemplated by the Option Voting Agreements is
qualified in its entirety by reference to the full text of the form of Option
Voting Agreement, a copy of which is attached to this Schedule 13D as Exhibit
99.4.
(c) Not applicable.
(d) If the Arrangement is consummated, Oshap will become a wholly-owned
subsidiary of SunGard and SunGard will subsequently determine the size and
membership of the Board of Directors of Oshap and the officers of Oshap.
(e) None, other than a change in the number of outstanding shares of
Oshap Ordinary Shares as contemplated by the Agreement if the Arrangement is
consummated.
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<PAGE>
(f) If the Arrangement is consummated, Oshap will become a wholly-owned
subsidiary of SunGard.
(g) If the Arrangement is consummated, the applicable charter documents
of Oshap may be amended and restated in a form satisfactory to SunGard.
(h) If the Arrangement is consummated, the Oshap Ordinary Shares will
cease to be quoted on any quotation system or exchange.
(i) If the Arrangement is consummated, the Oshap Ordinary Shares will
become eligible for termination of registration pursuant to Section 12(g)(4) of
the Exchange Act.
(j) Other than as described above, SunGard currently has no plan or
proposal which relates to, or may result in, any of the matters listed in Items
4(a) - (i) of Schedule 13D (although SunGard reserves the right to develop such
plans).
Item 5. Interest in Securities of the Issuer.
(a)-(b) As a result of the Voting Agreements, SunGard has shared power
to vote an aggregate of 4,150,782 Oshap Ordinary Shares for the limited purposes
described in Item 4 above. Based on information supplied by Oshap, such shares
constitute approximately 32.34% of the 12,836,110 issued and outstanding Oshap
Ordinary Shares as of March 5, 1999. The foregoing excludes approximately
516,000 Options to purchase Oshap Ordinary Shares which are also subject to the
Voting Agreement and/or the Option Voting Agreement.
To SunGard's knowledge, no shares of Oshap Ordinary Shares are
beneficially owned by any of the persons named in Schedule I to this Schedule
13D, except for such beneficial ownership, if any, arising solely from the
Voting Agreements.
Set forth in Schedule III to this Schedule 13D is the name and, if
known, the present principal occupation or employment or principal business,
business address and citizenship of each person with whom SunGard shares the
power to vote or to direct the vote or to dispose or direct the disposition of
Oshap Ordinary Shares.
To SunGard's knowledge, during the past five years no person named in
Schedule III to this Schedule 13D has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
To SunGard's knowledge, during the past five years no person named in
Schedule III to this Schedule 13D was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
such person was or is subject to a judgment, decree or final order enjoining
future violations of or prohibiting or mandating activity subject to federal or
state securities laws or finding any violation with respect to such laws.
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<PAGE>
(c) Neither SunGard, nor, to SunGard's knowledge, any person named
in Schedule III to this Schedule 13D, has effected any transaction in Oshap
Ordinary Shares during the past 60 days, except as disclosed herein.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Other than as described in Item 4 above, to SunGard's knowledge, there
are no contracts, arrangements, understandings or relationships (legal or
otherwise) among the persons named in Item 2 and between such persons and any
person with respect to any securities of Oshap, including but not limited to
transfer or voting of any of the securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits:
Exhibit 99.1 - Agreement dated March 9, 1999, by and among SunGard
Data Systems Inc., a Delaware corporation, and Oshap
Technologies Ltd., a corporation formed under the laws
of the State of Israel. (to be filed by amendment)
Exhibit 99.2 - Form of Voting Agreement dated March 9, 1999, between
SunGard Data Systems Inc., a Delaware corporation, and
each of the persons listed on Schedule II.
Exhibit 99.3 - Form of O Company Affiliate Agreement dated March 9, 1999,
between SunGard Data Systems Inc., a Delaware
corporation, and each of the persons listed on Schedule II
(other than Cramer, Rosenthal & McGlynn, LLC).
Exhibit 99.4 - Form of Option Voting Agreement dated March 9, 1999
signed by each of the persons listed on Schedule IV.
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Signatures:
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, I believe that the information set forth in this statement is true,
complete and correct.
SUNGARD DATA SYSTEMS INC.
By: /s/ Lawrence A.Gross
--------------------------------
Lawrence A. Gross
Vice President and
General Counsel
Dated: March 19, 1999
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<PAGE>
SCHEDULE I
EXECUTIVE OFFICERS AND EMPLOYEE DIRECTORS OF SUNGARD
Name Principal Occupation or Employment
- ---- ----------------------------------
James L. Mann Director, Chairman of the Board, President and Chief
Executive Officer, SunGard Data Systems Inc.
Andrew P. Bronstein Vice President and Controller, SunGard Data Systems
Inc.
Cristobal I. Conde Executive Vice President, SunGard Data Systems Inc.
Philip L. Dowd Senior Vice President, SunGard Data Systems Inc.
Lawrence A. Gross Vice President and General Counsel, SunGard Data
Systems Inc.
Michael K. Muratore Senior Vice President, SunGard Data Systems Inc.
Donna J. Pedrick Vice President-Human Resources, SunGard Data Systems
Inc.
Michael J. Ruane Chief Financial Officer and Vice President-Finance,
SunGard Data Systems Inc.
Richard C. Tarbox Vice President-Corporate Development, SunGard Data
Systems Inc.
All individuals named in the above table are employed by SunGard Data
Systems Inc., or an affiliate of SunGard Data Systems Inc. The address of
SunGard's principal executive office is 1285 Drummers Lane, Wayne, Pennsylvania
19087.
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<PAGE>
SCHEDULE I (CONTINUED)
NON-EMPLOYEE DIRECTORS OF SUNGARD
<TABLE>
<CAPTION>
Principal Occupation Name And Address of Corporation or
Name Or Employment Other Organization in Which Employed
- ---- -------------------- ------------------------------------
<S> <C> <C>
Gregory S. Bentley President and Bentley Systems, Inc.
Chairman of the Board 685 Stockton Drive
Exton, PA 19341-1136
Michael C. Brooks General Partner J.H Whitney & Co.
177 Broad Street, 15th Street
Stamford, CT 06901
Albert A. Eisenstat Director of Public 358 Walsh Road
Companies Atherton, CA 94027
Bernard Goldstein Director Broadview Associates, L.P.
One Bridge Plaza, Suite 500
Fort Lee, NJ 07024
Michael Roth Of Counsel Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022
Malcolm I. Ruddock Treasurer Sun Company, Inc.
Ten Penn Center, 27th Floor
1801 Market Street
Philadelphia, PA 19103
Lawrence J. Schoenberg Director of Public 415 L'Ambiance Drive, Apt. 708
Companies Longboat Key, FL 34228
</TABLE>
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<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Percentage of
Number of Shares Shares of OSHAP
of OSHAP Ordinary Ordinary Options Subject
Shares Shares as of to Voting
Voting Agreement Stockholder Beneficially Owned March 5, 1999 Agreement
- ------------------------------------------------------ ------------------- ------------------- ------------------
<S> <C> <C> <C>
Shlomo Dovrat ........................................ 2,331,027 18.16 190,000
Aharon Dovrat ........................................ 200,104 1.56 12,000
SVE Star Ventures .................................... 114,621 0.89
Enterprises No. II,
a German Civil Law Partnership
(with limitation of liability)
SVE Star Ventures .................................... 307,586 2.40
Enterprises No. III, a German Civil Law Partnership
[with limitation of liability)
SVE Star Ventures Enterprises No. IIIa, .............. 25,509 0.20
a German Civil Law Partnership (with
limitation of liability)
SVM Star Ventures .................................... 135,359 1.05
ManagementgasellschaftmbH Nr. 3 & Co.
Beteiligungs KG
SRIW S.A. ............................................ 664,053 5.17
Cramer, Rosenthal & McGlynn LLC ...................... 285,023 2.22
Avi Zeevi ............................................ 87,500 0.68 135,000
</TABLE>
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<PAGE>
SCHEDULE III
<TABLE>
<CAPTION>
Citizenship or
Voting Agreement Principal Occupation or Employment or Jurisdiction of
Stockholder Principal Business Organization
- ---------------- ------------------------------------- ---------------
<S> <C> <C>
Shlomo Dovrat President and Chief Executive Officer of Israeli
Oshap
Aharon Dovrat Chairman of the Board of Oshap and Israeli
principal shareholder of Dovrat, Shrem & Co.,
an investment banking firm
SVE Star Ventures Investment Fund Germany
Enterprises No. II,
a German Civil Law
Partnership (with
limitation of liability)
SVE Star Ventures Investment Fund Germany
Enterprises No. III,
a German Civil Law
Partnership (with
limitation of liability)
SVE Star Ventures Investment Fund Germany
Enterprises No. IIIa,
a German Civil Law
Partnership (with
limitation of liability)
SVM Star Ventures Venture Capital Fund Germany
Managementgasellschaft
mbH Nr. 3 & Co.
Beteiligungs KG
SRIW S.A. Investment Fund Belgium
Cramer, Rosenthal Investment Advisory Firm United States
& McGlynn, LLC.
Avi Zeevi Chief Financial Officer of Oshap Israeli
</TABLE>
<PAGE>
SCHEDULE III (CONTINUED)
The address for Shlomo Dovrat, Aharon Dovrat and Avi Zeevi is c/o Oshap
Technologies Ltd., Delta House, 16 Hagalim Avenue, Herzeliya 46733 Israel. The
principal office for the Star Venture entities is Possartstrasse 9, D-81679
Munich, Germany. The principal office for SRIW S.A. is Avenue Destenay 13,
B-4080 Liege, Belgium, Attn: Mr. Michel De Greef. The principal office for
Cramer, Rosenthal & McGlynn LLC, is 707 West Chester Avenue, White Plains, NY
10604.
<PAGE>
SCHEDULE IV
Options Subject to Option
Option Voting Agreement Holder Voting Agreement
--------------------------------- ---------------------------
Avi Zeevi 135,000*
Michel De Greef 28,000
Kenneth J. Bialkin 42,000
Meir Barel 20,000
Brian Owen 25,000
Gerald S. Cramer 36,000
Michel Theys 28,000
Aharon Dovrat 12,000*
* Also subject to Voting Agreement.
<PAGE>
EXHIBIT 99.2
VOTING AGREEMENT
PARTIES: The Shareholder Listed on the Signature Page ("Shareholder")
SUNGARD DATA SYSTEMS INC.
a Delaware corporation ("S Company")
1285 Drummers Lane
Wayne, Pennsylvania 19807
DATE: March 9, 1999
BACKGROUND: Shareholder is a shareholder of Oshap Technologies Ltd., a
corporation formed under the laws of the State of Israel (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 (subject to the conditions set
forth therein) for the exchange of S Company Shares for Company Ordinary Shares
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 and (ii) 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. As a condition to the willingness
of S Company and Company to enter into the Agreement, S Company has required
that the Shareholder enter into, and in order to induce S Company to enter into
the Agreement the Shareholder has agreed to enter into, this Voting Agreement
(the "Voting 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. Certain Definitions
(a) All capitalized terms used but not otherwise defined in this
Voting Agreement have the meanings ascribed to such terms in the Agreement.
(b) "Expiration Date" shall mean the earlier of (i) the date
upon which the Agreement is validly terminated pursuant to Section 9.1 thereof,
and (ii) the Effective Date.
(c) A Shareholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if the Shareholder: (i) is a record owner of such
security; or (ii) is a "beneficial owner" (within the meaning of Rule 13d-3
under the Exchange Act) of such security unless such beneficial ownership is due
solely to an agreement between the Shareholder and another holder of Company
Ordinary Shares that grants to Shareholder voting power with respect to such
security on matters other than the Arrangement.
<PAGE>
(d) 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 shareholders of the Company called for the purpose of voting on such
matter; or (ii) to take action by written consent of the shareholders of the
Company with respect to such matter.
(e) "Subject Securities" shall mean: (i) all securities of the
Company (including the Company Ordinary Shares and all options, warrants and
other rights to acquire Company Ordinary Shares) Owned by the Shareholder
(individually or jointly) as of the date of this Voting Agreement; and (ii) all
additional securities of the Company (including all additional Company Ordinary
Shares and all additional options, warrants and other rights to acquire Company
Ordinary Shares) of which the Shareholder (individually or jointly) acquires
Ownership during the period from the date of this Voting Agreement through the
Expiration Date.
(f) A person shall be deemed to have effected a "Transfer" of a
security if such person directly or indirectly; (i)sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security including, without limitation, transfers of such
security to the shareholders, partners or equity holders of such person as a
dividend or other distribution; or (ii)enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein including, without limitation, an agreement or commitment
contemplating the possible transfer of such security to the shareholders,
partners, or equity holders of such person as a dividend or distribution.
2. Transfer of Subject Securities
(a) Transferee of Subject Securities to be Bound by this Voting
Agreement. The Shareholder agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Shareholder shall not cause or
permit any Transfer of any of the Subject Securities Owned by Shareholder to be
effected unless each person to which any of such Subject Securities, or any
interest in any of such Subject Securities, is or may be transferred shall have:
(a) executed a counterpart of this Voting Agreement and a proxy in the form
attached hereto as Exhibit A; and (b) agreed in writing to hold such Subject
Securities (or interest in such Subject Securities) subject to all of the terms
and provisions of this Voting Agreement.
(b) Transfer of Voting Rights. Shareholder agrees that, during
the period from the date of this Voting Agreement through the Expiration Date,
Shareholder shall ensure that: (a) none of the Subject Securities Owned by
Shareholder is deposited into a voting trust; and (b) no proxy is granted, and
no agreement or similar agreement is entered into, with respect to any of the
Subject Securities Owned by Shareholder.
3. Voting of Shares.
(a) Agreement. Shareholder covenants and agrees that, during the
period from the date of this Voting Agreement through the Expiration Date, at
the Company Shareholders Meetings and the Optionholders Meetings, however
called, and at every
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<PAGE>
adjournment or postponement thereof, and in any written action by consent of the
shareholders of the Company, unless otherwise directed in writing by S Company,
Shareholder shall (i) appear, or cause the holder of record as of the Record
Date to appear at such meetings for the purpose of establishing a quorum, and
(ii) vote or cause to be voted all issued and outstanding Subject Securities,
including Company Ordinary Shares, that are Owned by Shareholder (individually
or jointly) as of the Record Date: in favor of the Arrangement, the execution
and delivery by the Company of the Agreement and the Plan and the adoption and
approval of the terms thereof and in favor of the other related transactions and
each of the actions contemplated by the Agreement and the Plan and any action by
the Company reasonably required in furtherance thereof.
(b) Proxy. Contemporaneously with the execution of this Voting
Agreement, Shareholder shall deliver to S Company 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 Subject Securities, including Company Ordinary
Shares, referred to herein and held of record by Shareholder (the "Proxy"). As
soon as practicable after the execution of this Voting Agreement, Shareholder
shall use its reasonable best efforts to cause to be delivered to S Company an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any issued and outstanding Subject Securities, including
Company Ordinary Shares, that are owned beneficially (but are not owned of
record) by Shareholder.
4. No Solicitation.
(a) Shareholder covenants and agrees that, during the period
commencing on the date of this Voting Agreement and ending on the Expiration
Date, Shareholder shall not, directly or indirectly, and Shareholder shall
ensure that no officer, director, employee and investment banker, attorney or
other agent retained by or acting on behalf of Shareholder, shall: (i) solicit,
initiate or induce the making, submission or announcement of any Acquisition
Proposal; (ii) furnish any information regarding the Company 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.
(b) Shareholder shall immediately cease any existing discussions
with any person that relate to any Acquisition Proposal.
(c) Notwithstanding the restrictions set forth in this Section
4, if Shareholder is a director or officer of the Company, this Section 4 shall
not prevent Shareholder from taking any action that is consistent with the terms
of the Agreement.
5. Representations and Warranties of Shareholder. Shareholder
represents and warrants to S Company as follows:
(a) Authorization. Shareholder has the full right, power,
authority and capacity to execute and deliver this Voting Agreement and the
Proxy and to perform his, her or its obligations hereunder and thereunder. This
Voting Agreement and the Proxy have been duly executed and delivered by
Shareholder and constitute legal, valid and binding obligations of Shareholder,
enforceable against Shareholder in accordance with its terms
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<PAGE>
(b) No Conflicts, Required Filings and Consents.
(i) The execution and delivery of this Voting Agreement
and the Proxy by Shareholder do not, and the performance of this Voting
Agreement and the Proxy, by Shareholder will not: (A) conflict with or violate
any law, order, decree or judgment applicable to Shareholder or by which he,
she, it or they or any of his, her, its or their properties are bound or
affected; or (B) result in any breach of or constitute a default or breach
(immediately or after the giving of notice, passage of time, or both) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any lien, security interest,
charge or encumbrance on any of the Subject Securities pursuant to, any contract
to which Shareholder is a party or by which Shareholder or any of his, her or
its properties is bound or affected. The undersigned hereby consents to other
shareholders of the Company entering into agreements similar to this Voting
Agreement.
(ii) The execution and delivery of this Voting Agreement
and the Proxy by Shareholder do not, and the performance of this Voting
Agreement and the Proxy by Shareholder will not, require any consent, approval
or waiver of any person.
(c) Title to Subject Securities. As of the date hereof,
Shareholder Owns in the aggregate (including shares owned of record and shares
owned beneficially) the number of issued and outstanding Company Ordinary Shares
set forth below Shareholder's name on the signature page hereof, and the number
of options, warrants and other rights to acquire Company Ordinary Shares set
forth below Shareholder's name on the signature page hereof, and does not
directly or indirectly own, any Company Ordinary Shares, or any option, warrant
or other right to acquire any Company Ordinary Shares, other than the shares and
options, warrants and other rights set forth below such Shareholder's name on
the signature page hereof.
(d) Accuracy of Representations. The representations and
warranties of Shareholder 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 Arrangement as if made on
that date.
6. Miscellaneous.
(a) Non-Survival of Representations, Warranties and Agreements.
All representations, warranties and agreements made by the Shareholder in this
Voting Agreement shall terminate upon the Expiration Date; provided, however,
nothing in this Section 6(a) shall relieve the Shareholder from liability after
the Expiration Date for any breach on or prior to the Expiration Date of any
representation, warranty, or agreement made by the Shareholder in this Voting
Agreement.
(b) Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
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<PAGE>
(c) Notices. All notices, consents or other communications required or
permitted to be given under this Voting 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 airmail, 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 stated on page one of this Voting
Agreement to the attention of S Company's General Counsel, with a copy sent
simultaneously to the same address to the attention of S Company's Chief
Financial Officer and to Blank Rome Comisky & McCauley LLP, One Logan Square,
Philadelphia, PA 19103, Facsimile No. 215-569-5628, Attention: Arthur H. Miller.
Notices to the Shareholder shall be sent to its address stated on the signature
page of this Voting Agreement, with a copy sent simultaneously to Meitar,
Liquornik, Geva & Co., 16 Abba Hillel Silver Rd., Ramat-Gan 52506, Israel,
Facsimile No.: 972-3-610-3111, Attention: Dan Shamgar except that, in the case
of the STAR Funds, to: Goldfarb, Levy, Eran & Co., Eliahu House, 2 Ibn Gvirol
Street, Tel Aviv 64077, Israel, Facsimile No.: 972-3-695-4344, Attention: Oded
Eran. 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 6(c), provided that any such change of address
notice shall not be effective unless and until received.
(d) Entire Understanding. This Voting 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 Voting Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
(e) Waivers. Except as otherwise expressly provided herein, no waiver
with respect to this Voting 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.
(f) Severability. If any provision of this Voting 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 Voting Agreement. Each
provision of this
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<PAGE>
Voting Agreement is separable from every other provision of this Voting
Agreement, and each part of each provision of this Voting Agreement is separable
from every other part of such provision.
(g) Counterparts. This Voting 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 Voting Agreement
to produce or account for more than one counterpart hereof.
(h) Section Headings. Section and subsection headings in this Voting
Agreement are for convenience of reference only, do not constitute a part of
this Voting Agreement, and shall not affect its interpretation.
(i) References. All words used in this Voting Agreement shall be construed
to be of such number and gender as the context requires or permits.
(j) CONTROLLING LAW. EXCEPT FOR MATTERS GOVERNING THE GRANT OF A PROXY
WHICH SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ISRAEL, THIS VOTING
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.
(k) Jurisdiction and Process. In any action between or among any of the
parties, whether arising out of this Voting Agreement or otherwise, (i) each of
the parties irrevocably consents to the exclusive jurisdiction and venue of the
federal and state courts located in the Commonwealth of Pennsylvania, (ii) 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, (iii) each of the parties irrevocably
waives the right to trial by jury, (iv) each of the parties irrevocably consents
to service of process by first class certified airmail, return receipt
requested, postage prepaid, to the address at which such party is to receive
notice in accordance with Section 6(c), and (v) the prevailing parties shall be
entitled to recover their reasonable attorneys' fees and court costs from the
other parties.
(l) 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).
(m) Bankruptcy Qualification. Each representation or warranty made in or
pursuant to this Voting 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.
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<PAGE>
(n) 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 Voting
Agreement. 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".
(o) 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 S
Company may assign all or any of its rights hereunder to any wholly-owned
subsidiary of S Company (provided that such subsidiary remains a wholly-owned
subsidiary of S Company). Subject to the preceding sentence, this Voting
Agreement shall be binding upon Shareholder and his, her or its heirs,
successors and assigns, and shall inure to the benefit of S Company 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.
(p) 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 S Company 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 court of proper
jurisdiction, this being in addition to any other remedy to which S Company is
entitled at law or in equity.
(q) Other Agreements and Independence of Obligations. Nothing in this
Voting Agreement shall limit any of the rights or remedies of S Company or any
of the obligations of Shareholder under any Affiliate Agreement between S
Company and Shareholder or under any other agreement. The covenants and
obligations of the Shareholder set forth in this Voting Agreement shall be
construed as independent of any other agreement or arrangement between
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
or the Company shall not constitute a defense to the enforcement of any of such
covenants or obligations against Shareholder.
(r) Attorneys' Fees. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Agreement is brought against Shareholder, the prevailing party shall be entitled
to recover reasonable attorneys' fees, costs and disbursements (in additional to
any other relief to which the prevailing party may be entitled).
[BALANCE OF PAGE INTENTIONALLY BLANK]
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<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Voting Agreement to be
executed as of the date first stated above.
SUNGARD DATA SYSTEMS INC.
By:
---------------------------------------
Name:
Title:
SHAREHOLDER:
------------------------------------------
Name:
Address:
--------------------------------
--------------------------------
--------------------------------
Facsimile:
--------------------------------
Number of issued and outstanding Company
Ordinary Shares owned of record as of the
date of this Voting Agreement:____________
Number of additional issued and
outstanding Company Ordinary Shares owned
beneficially (but not of record) as of the
date of this Voting Agreement:____________
Number of options, warrants and other
rights to acquire Company Ordinary Shares
owned of record as of the date of this
Voting Agreement:__________________
Number of additional options, warrants and
other rights to acquire Company
Ordinary Shares owned beneficially (but
not of record) as of the date of this
Voting Agreement:_______________
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<PAGE>
EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned Shareholder of O Company, a corporation formed under
the laws of the State of Israel (the "Company"), hereby irrevocably (to the
fullest extent permitted by law) appoints and constitutes Lawrence A. Gross,
Michael J. Ruane, and SunGard Data Systems Inc., a Delaware corporation ("S
Company"), 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 Subject
Securities, including Company Ordinary Shares, 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 Subject Securities,
including Company Ordinary Shares, which the undersigned (individually or
jointly) may acquire of record after the date hereof. Upon the execution hereof,
all prior proxies given by the undersigned with respect to any of the Subject
Securities, including Company Ordinary Shares, are hereby revoked, and no
subsequent proxies will be given with respect to any of the Subject Securities,
including Company Ordinary 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 S
Company and the undersigned (the "Voting Agreement"), and is granted in
consideration of S Company entering into the Agreement, dated as of the date
hereof, among S Company and the Company (the "Agreement"), which has attached
thereto the related Plan of Arrangement. Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Agreement or the Voting Agreement, as the case may be.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, at any time during the period from the date hereof through
the Expiration Date at the Company Shareholders Meetings or Optionholders
Meetings, however called, and at every adjournment or postponement thereof, or
in any written action by consent of shareholders of the Company, to (i) appear,
or cause the holder of record as of the Record Date to appear, at the Company
Shareholders Meetings or Optionholders Meetings, or any adjournments or
postponements thereof, for the purpose of establishing a quorum, and (ii) vote
or cause to be voted the shares in favor of the Arrangement and the other
related transactions, the execution and delivery by the Company of the Agreement
and the Plan and the adoption and approval of the terms thereof and in favor of
the transactions and each of the other actions contemplated by the Agreement and
the Plan and any action by the Company reasonably required in furtherance
thereof.
This Proxy does not relate to, and the undersigned Shareholder remains
entitled to vote the Subject Securities, including Company Ordinary 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 Subject Securities,
including Company Ordinary Shares), except as provided in the Voting Agreement.
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<PAGE>
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: March __, 1999
SHAREHOLDER:
---------------------------------------
Name:
Number of Company Ordinary Shares owned
of record as of the date of this proxy:
-------------
Number of options, warrants and other
rights to acquire Company Ordinary
Shares owned of record as of the date
of this Voting Agreement:
-------------
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<PAGE>
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")
1285 Drummers Lane
Wayne, Pennsylvania 19087
OSHAP TECHNOLOGIES LTD.
an Israeli corporation (the "Company")
16 Hagalim Avenue
Herzeliya 46733, Israel
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 APB No. 16, 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.
<PAGE>
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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<PAGE>
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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<PAGE>
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 Comisky & McCauley LLP, One Logan Square,
Philadelphia, PA 19103-6998, Attention: Arthur H. Miller, 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., 16 Habba Hillel Silver Rd., Ramat-Gan 52506, Israel, Attention: Dan
Shamgar, except that in the case of the Star Funds, to Goldfarb, Levy, Eran &
Co., Eliahu House, 2 Ibn Gvirol Street, Tel Aviv 64077, Israel, Facsimile No.:
972-3-695-4344, Attention: Oded Eran. 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:
-----------------------
Name:
Title:
OSHAP TECHNOLOGIES LTD.
By:
-----------------------
Name:
Title:
[SIGNATURES TO AFFILIATE AGREEMENT CONTINUED ON NEXT PAGE]
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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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EXHIBIT 99.4
March 9, 1999
SunGard Data Systems Inc.
1285 Drummers Lane
Wayne, Pennsylvania 19087
Gentlemen:
Reference is made to the Agreement (the "Agreement"), dated as of March
9, 1999, by and between SunGard Data Systems Inc. and Oshap Technology Ltd.
Capitalized terms shall have the meaning assigned to such terms in the
Agreement.
In consideration of S Company's willingness to enter into the
Agreement, the undersigned hereby irrevocably agrees to vote all options to
purchase Company Ordinary Shares held by him in favor of the Arrangement at any
Optionholders Meeting. The undersigned hereby appoints each of Lawrence A.
Gross, Michael J. Ruane and SunGard Data Systems Inc., 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 to vote all
options to purchase Company Ordinary Shares held by him. The attorneys and
proxies named above will be empowered, and may exercise this proxy, at any time
during the period from the date hereof through the Optionholders Meetings,
however called, and at every adjournment or postponement thereof, to (i) appear
at the Optionholders Meetings, or any adjournments or postponements thereof, for
the purpose of establishing a quorum, and (ii) vote or cause to be voted the
options in favor of the Arrangement. The undersigned agrees not to transfer any
such options unless the transferee undertakes in writing to be bound by this
letter agreement. This agreement shall remain in full force and effect unless
and until the Arrangement is consummated or the Agreement is terminated in
accordance with its terms.
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