EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
Parties: MACESS Corporation
an Alabama corporation ("MACESS")
402 Office Park Drive, Suite 150
Birmingham, AL 35223
SunGard Data Systems Inc.
a Delaware corporation ("SunGard")
1285 Drummers Lane, Wayne, Pennsylvania 19087
SDS Merger Inc.
an Alabama corporation ("Newco")
1285 Drummers Lane, Wayne, Pennsylvania 19087
Date: September 29, 1995
Background: Newco is a wholly-owned subsidiary of SunGard. MACESS, SunGard,
Newco and the principal equity owners of MACESS have entered into an Agreement
and Plan of Reorganization, dated this date (the "Reorganization Agreement"),
that contemplates the consolidation and merger of Newco with and into MACESS
(the "Merger") in accordance with the provisions of the Reorganization Agreement
and the provisions of this Agreement and Plan of Merger (this "Plan").
Now, therefore, in consideration of the mutual agreements contained herein
and subject to the satisfaction of the terms and conditions set forth herein and
in the Reorganization Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Merger. On the Effective Date (as defined below), Newco shall be
consolidated and merged with and into MACESS in accordance with the provisions
of this Plan and in compliance with the Alabama Corporation Law and any other
applicable corporate laws (the "Corporation Laws"), and the Merger shall have
the effect provided for in the Corporation Laws. MACESS (sometimes referred to
as the "Surviving Corporation") shall be the surviving corporation of the Merger
and shall continue to exist and to be governed by the laws of the State of
Alabama. The corporate existence and identity of MACESS, with its purposes and
powers, shall continue unaffected and unimpaired by the Merger, and MACESS shall
become a wholly-owned subsidiary of SunGard after the Effective Date. On the
Effective Date, MACESS shall succeed to and be fully vested with the corporate
existence and identity of Newco, and the separate corporate existence and
identity of Newco shall cease.
2. Name. The name of the Surviving Corporation shall be "MACESS
Corporation."
3. Charter. Immediately after the Merger, the Certificate of
Incorporation of the Surviving Corporation shall be that of MACESS immediately
before the Merger.
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4. Bylaws. Immediately after the Merger, the Bylaws of the Surviving
Corporation shall be those of MACESS immediately before the Merger.
5. Directors. Immediately after the Merger, the directors of the
Surviving corporation shall be the following persons, who shall serve in
accordance with the Bylaws of the Surviving Corporation:
Kenneth R. Adams
Lawrence A. Gross
Michael J. Ruane
6. Officers. Immediately after the Merger, the officers of the Surviving
Corporation shall be the following persons, who shall serve in accordance with
the Bylaws of the Surviving Corporation:
Kenneth R. Adams ....... Chairman, Chief Executive Officer
T. Alan Ritchie ........ President
W. Sanders Pitman ...... Vice President
Lawrence A. Gross ...... Assistant Vice President, Secretary
Michael J. Ruane ....... Assistant Vice President, Assistant Secretary
Andrew P. Bronstein .... Assistant Vice President, Assistant Secretary
7. Conversion of Newco Stock. On the Effective Date, each share of the
total of 1,000 shares of common stock of Newco, $1.00 par value per share,
issued and outstanding immediately before the Effective Date shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
automatically converted into and become one share of voting common stock, $0.002
par value per share, of the Surviving Corporation. It is the intention of the
parties that, immediately after the Merger, SunGard shall own all of the issued
and outstanding capital stock of the Surviving Corporation.
8. Conversion of MACESS Stock On the Effective Date, each share of
capital stock of MACESS, including 1,430,100 shares of voting common stock,
$0.002 par value per share, and 5,720,400 shares of Class A non-voting common
stock, $0.002 par value per share, issued and outstanding immediately before the
Effective Date shall, by virtue of the Merger and without any action on the part
of the holder thereof, be automatically converted into and become 0.2783022 (the
"Preliminary Merger Exchange Ratio") shares of common stock of SunGard, $0.01
par value per share ("SunGard Stock"), subject to the possible adjustment
described in Section 9 of this Plan.
9. Possible Adjustment due to Recapitalization. If, between the date of
this Plan and the Effective Date, there is a change in the number of issued and
outstanding shares of SunGard Stock as a result of a stock split, reverse stock
split, stock dividend, reclassification, exchange of shares or similar
recapitalization, then the Preliminary Merger Exchange Ratio shall be
appropriately adjusted. The Preliminary Merger Exchange Ratio shall not be
adjusted as a result of any other changes in the number of issued and
outstanding shares of SunGard Stock, such as changes resulting from acquisitions
or offerings or changes resulting from exercises of stock options, purchases or
awards of stock, or similar transactions under SunGard's stock option, purchase
and award plans. The Preliminary Merger Exchange Ratio, after adjustment in
accordance with this Section 9 (if any), shall be referred to as the "Final
Merger Exchange Ratio."
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10. No Fractional Shares. No fractional shares of SunGard Stock shall be
issued as a result of the Merger. In lieu of the issuance of fractional shares,
the number of shares of SunGard Stock to be issued to each stockholder of MACESS
in accordance with this Plan shall be rounded off to the nearest whole number of
shares of SunGard Stock.
11. MACESS Stock held by MACESS. On the Effective Date, any shares of
MACESS Stock that are held by MACESS (as treasury shares) immediately before the
Effective Date shall, by virtue of the Merger and without any action on the part
of the holder thereof, be automatically canceled.
12. Exchange Procedures. SunGard shall designate its transfer agent to
act as the "Exchange Agent" under this Plan. As soon as is practicable after
the Effective Date, SunGard or the Exchange Agent shall mail, to each record
holder of an outstanding certificate that immediately before the Effective Date
represented shares of MACESS Stock, instructions for use in effecting the
surrender of such certificate to the Exchange Agent. Upon the surrender of such
certificate to the Exchange Agent in accordance with such instructions, the
Exchange Agent shall exchange such certificate for (a) a new certificate
representing 90% of such number of shares of SunGard Stock into which the shares
of MACESS Stock represented by such certificate have been converted in
accordance with this Plan ("Closing Stock"), which shall be promptly delivered
to the holder, and (b) a new certificate for the balance of such number of
shares of SunGard Stock into which the share of MACESS Stock represented by such
certificate have been converted in accordance with this Plan ("Escrow Stock"),
which shall be held and distributed in escrow in accordance with the terms of
the Escrow Agreement by and among MACESS, SunGard, Newco and the non-dissenting
stockholders of MACESS and dated as of the date hereof. If applicable, such
certificates shall be accompanied by any distributions due with respect to
shares of SunGard Stock that were paid to SunGard's stockholders of record as of
a date between the Effective Date and the date of distribution of either the
certificate representing the Closing Stock or the certificate representing the
Escrow Stock. Until surrendered in accordance with the foregoing, each
outstanding certificate that immediately before the Effective Date represented
shares of MACESS Stock shall be deemed to evidence ownership of the number of
shares of SunGard Stock into which the shares of MACESS Stock represented by
such certificate have been converted in accordance with this Plan, subject to
the escrow requirement described above; provided, however, that any such
certificate that is not properly submitted for exchange to SunGard or the
Exchange Agent within three years after the Effective Date shall no longer
evidence ownership of shares of Closing Stock or Escrow Stock and all rights of
the holder of such certificate, as a stockholder of SunGard with respect to the
shares previously evidenced by such certificate, shall cease.
13. Dissenter's Rights. Stockholders of MACESS shall be entitled to
exercise the rights of dissenting stockholders with respect to the Merger and
this Plan, as provided in the Corporation Laws. SunGard shall be responsible
for paying all cash amounts due to dissenting stockholders of MACESS.
14. Effective Date. As used in this Plan, the "Effective Date" shall mean
the date upon which this Plan and a proper Articles of Merger for the Merger
have been duly signed and filed with the proper official of the State of
Alabama.
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15. Entire Understanding. This Plan, together with the Reorganization
Agreement (and the Exhibits and Schedules thereto), states the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior oral and written communications and agreements, and all
contemporaneous oral communications and agreements, with respect to the subject
matter hereof. No amendment or modification of this Plan, and no waiver of any
provision of this Plan, shall be effective unless in writing and signed by the
party against whom enforcement is sought. MACESS may agree to any amendment or
supplement to this Plan, or a waiver of any provision of this Plan, either
before or after the approval of MACESS's stockholders is obtained (as
contemplated by the Reorganization Agreement) and without seeking further
stockholder approval, so long as such amendment, supplement or waiver does not
result in a decrease in the Preliminary Merger Exchange Ratio or have a material
adverse effect on MACESS's stockholders. The obligations of the parties under
this Plan shall be subject to all of the terms and conditions of the
Reorganization Agreement. If the Reorganization Agreement is terminated in
accordance with its terms, then this Plan shall simultaneously terminate, and
the Merger shall be abandoned without further action by the parties hereto.
16. Parties in Interest. This Plan shall bind, benefit and be enforceable
by and against the parties hereto and their respective successors and assigns.
No party hereto shall in any manner assign any of its rights or obligations
under this Plan without the express prior written consent of the other parties.
Nothing in this Plan or the Reorganization Agreement is intended to confer, or
shall be deemed to confer, any rights or remedies upon any persons other than
the parties hereto and their respective stockholders and directors.
17. Severability. If any provision of this Plan is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
18. Counterparts. This Plan 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 Plan to produce or
account for more than one counterpart hereof.
19. Section Headings. Section and subsection headings in this Plan are
for convenience of reference only, do not constitute a part of this Plan, and
shall not affect its interpretation.
20. References. All words used in this Plan shall be construed to be of
such number and gender as the context requires or permits.
21. Controlling Law. This Plan is made under, and shall be construed and
enforced in accordance with, the laws of the State of Alabama applicable to
merger agreements made and to be performed solely therein, without giving effect
to principles of conflicts of law.
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In testimony whereof, each undersigned corporation has caused this Agreement
and Plan of Merger to be signed by a duly authorized officer and its corporate
seal, duly attested by another such officer, to be hereunto affixed, as of the
date first stated above.
MACESS Corporation
By:/s/ William W. Featheringill
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William W. Featheringill,
Chairman and Chief Executive Officer
SunGard Data Systems Inc.
By:/s/ Richard C. Tarbox
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Richard C. Tarbox,
Vice President-Corporate Development
SDS Merger Inc.
By:/s/ Lawrence A. Gross
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Lawrence A. Gross,
Vice President
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