Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
PARTIES: FDP CORP.
a Florida corporation (the "Company")
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
SUNGARD DATA SYSTEMS INC.
a Delaware corporation ("Acquiror")
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
DEVELOPMENT CORP.
a Florida corporation ("Newco")
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
DATE: January 15, 1999
BACKGROUND: Newco is a wholly-owned subsidiary of Acquiror. The Company,
Acquiror and Newco 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 The Company (the "Merger") in
accordance with the provisions of the Reorganization Agreement and the
provisions of this Agreement and Plan of Merger (this "Plan").
INTENDING TO BE LEGALLY BOUND, in consideration of the foregoing and
the mutual agreements contained herein and in the Reorganization Agreement and
subject to the satisfaction of the terms and conditions set forth herein and in
the Reorganization Agreement, the parties hereto, agree as follows:
1. MERGER. On the Effective Date (as defined below), Newco shall be
merged with and into the Company in accordance with the provisions of this Plan
and in compliance with the Florida Business Corporation Act (the "FBCA"), and
the Merger shall have the effect provided for in the FBCA Laws. The Company
(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 Florida. The corporate existence and identity of the
Company, with its purposes and powers, shall continue unaffected and unimpaired
by the Merger, and the Company shall become a wholly owned subsidiary of
Acquiror after the Effective Date. On the Effective Date, the Company 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.
A-1
2. NAME. The name of the Surviving Corporation shall be "FDP Corp."
3. CHARTER. Immediately after the Merger, the Articles of Incorporation of
the Surviving Corporation shall be that of the Company immediately before the
Merger.
4. BYLAWS. Immediately after the Merger, the Bylaws of the Surviving
Corporation shall be those of the Company 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:
Xxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
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:
Xxxxxxx X. Xxxxxxxx Chairman, Chief Executive Officer
Xxxxxxx X. Xxxxxxxx President
Xxxxxxxx X. Xxxxx Assistant Vice President, Secretary
Xxxxxxx X. Xxxxx Assistant Vice President, Assistant Secretary
Xxxxxx X. Xxxxxxxxx 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 common stock, $0.01 par
value per share, of the Surviving Corporation. It is the intention of the
parties that, immediately after the Merger, Acquiror shall own all of the issued
and outstanding capital stock of the Surviving Corporation.
8. CONVERSION OF COMPANY COMMON STOCK. On the Effective Date, each share
of common stock of the Company, $0.01 par value per share ("Company Common
Stock"), issued and outstanding immediately before the Effective Date, other
than shares of Company Common Stock held by the Company or Acquiror as provided
in Sections 13 and 14 of this Plan, shall, by virtue of the Merger and without
any action on the part of the holder thereof, be automatically converted into
the right to receive a fraction (the "Exchange Ratio") of a share of common
stock of Acquiror, $0.01 par value per share ("Acquiror Common Stock"), which
Exchange Ratio shall be computed in accordance with Section 9.
9. COMPUTATION OF EXCHANGE RATIO. As used in this Plan, the "Market Value
of SunGard Stock" shall equal the arithmetic average of the last reported sale
prices of one share of SunGard Stock, as reported on The New York Stock Exchange
during the twenty (20) trading days ending on and including the trading day two
days before the Effective Date.
A-2
Subject to possible adjustments described in Section 10, the Exchange Ratio
shall be determined as follows:
a. If the Market Value of SunGard Stock is less than or equal to
$35.00 and greater than or equal to $30.00, then the Exchange Ratio shall equal
$14.40, divided by the Market Value of SunGard Stock, with the result rounded
off to four decimal places.
b. If the Market Value of SunGard Stock is greater than $35.00,
then the Exchange Ratio shall be equal to .4114.
c. If the Market Value of SunGard Stock is less than $30.00, then
the Exchange Ratio shall be equal to .4800.
10. POSSIBLE ADJUSTMENT DUE TO RECAPITALIZATION. If, between the date of
the Reorganization Agreement and the Effective Date, there is a change in the
number of issued and outstanding shares of Acquiror Common Stock as a result of
a stock split, reverse stock split, stock dividend, reclassification, exchange
of shares or similar recapitalization, then the Exchange Ratio shall be
appropriately adjusted. The Exchange Ratio shall not be adjusted as a result of
any other changes in the number of issued and outstanding shares of Acquiror
Common 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 Acquiror's stock option, purchase and award plans.
11. NO FRACTIONAL SHARES. No fractional shares of Acquiror Common Stock
shall be issued in connection with the Merger, and no certificates or scrip for
any such fractional shares shall be issued. Any holder of Company Common Stock
who would otherwise be entitled to receive a fraction of a share of Acquiror
Common Stock (after aggregating all fractional shares of Acquiror Common Stock
issuable to such holder) shall, in lieu of such fraction of a share and, upon
surrender of such holder's Company Stock Certificate(s) (as defined in Section
15 of this Plan), be paid in cash the dollar amount (rounded to the nearest
whole cent), without interest, determined by multiplying such fraction by the
closing price of a share of Acquiror Common Stock on the New York Stock Exchange
("NYSE") on the date the Merger becomes effective.
12. STOCK OPTIONS. The Company's 1984 Non-Qualified Stock Option Plan and
1994 Employee Stock Option Plan (the "Stock Plans") and all options to acquire
shares of Company Common Stock that are issued and outstanding under the Stock
Plans immediately before the Effective Date (collectively, the "Options"),
shall continue in effect, as an option plan of Acquiror and as options issued by
Acquiror, respectively, in accordance with the terms and conditions by which
they are governed immediately before the Effective Date, subject to the
adjustments and conditions set forth in the Reorganization Agreement.
13. COMPANY COMMON STOCK HELD BY ACQUIROR. On the Effective Date, any
shares of Company Common Stock that are held by Acquiror or any direct or
indirect wholly-owned subsidiary of Acquiror 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, and no consideration shall be
exchanged therefor.
A-3
14. COMPANY COMMON STOCK HELD BY THE COMPANY. On the Effective Date, any
shares of Company Common Stock that are held by the Company or any direct or
indirect wholly-owned subsidiary of the Company (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, and no
consideration shall be exchanged therefor.
15. CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Effective Date: (a)
all shares of Company Common Stock outstanding immediately prior to the
Effective Date shall automatically be canceled and retired and shall cease to
exist as provided in Section 8, and all holders of certificates representing
shares of Company Common Stock that were outstanding immediately prior to the
Effective Date shall cease to have any rights as stockholders of the Company;
and (b) the stock transfer books of the Company shall be closed with respect to
all shares of Company Common Stock outstanding immediately prior to the
Effective Date. No further transfer of any such shares of Company Common Stock
shall be made on such stock transfer books after the Effective Date. If, after
the Effective Date, a valid certificate previously representing any of such
shares of Company Common Stock (a "Company Stock Certificate") is presented to
the Exchange Agent (as defined in Section 16) or to the Surviving Corporation or
Acquiror, such Company Stock Certificate shall be canceled and shall be
exchanged as provided in Section 16.
16. EXCHANGE OF CERTIFICATES.
(a) On or prior to the Closing Date, Acquiror shall select a
reputable bank or trust company to act as exchange agent in the Merger (the
"Exchange Agent"). Promptly after the Effective Date, Acquiror shall deposit
with the Exchange Agent (i) certificates representing the shares of Acquiror
Common Stock issuable pursuant to this Plan, and (ii) cash sufficient to make
payments in lieu of fractional shares in accordance with Section 11. The shares
of Acquiror Common Stock and cash amounts so deposited with the Exchange Agent,
together with any dividends or distributions received by the Exchange Agent with
respect to such shares, are referred to collectively as the "Exchange Fund."
(b) As soon as reasonably practicable after the Effective Date, the
Exchange Agent will mail to the record holders of Company Stock Certificates (i)
a letter of transmittal in customary form and containing such provisions as
Acquiror may reasonably specify (including a provision confirming that delivery
of Company Stock Certificates shall be effected, and risk of loss and title to
Company Stock Certificates shall pass, only upon delivery of such Company Stock
Certificates to the Exchange Agent), and (ii) instructions for use in effecting
the surrender of Company Stock Certificates in exchange for certificates
representing Acquiror Stock. Upon surrender of a Company Stock Certificate to
the Exchange Agent for exchange, together with a duly executed letter of
transmittal and such other documents as may be reasonably required by the
Exchange Agent or Acquiror, (1) the holder of such Company Stock Certificate
shall be entitled to receive in exchange therefor a certificate representing the
number of whole shares of Acquiror Common Stock that such holder has the right
to receive pursuant to the provisions of this Plan (and cash in lieu of any
fractional share of Acquiror Common Stock), and (2) the Company Stock
Certificate so surrendered shall be canceled. Until surrendered as contemplated
by this Section 16, each Company Stock Certificate shall be deemed, from and
after the Effective Date, to represent only the right to receive shares of
Acquiror Common Stock (and cash in lieu of any fractional share of Acquiror
Common Stock);
A-4
PROVIDED, HOWEVER, THAT ANY SUCH CERTIFICATE THAT IS NOT PROPERLY SUBMITTED FOR
EXCHANGE TO ACQUIROR OR THE EXCHANGE AGENT WITHIN TWO YEARS AFTER THE EFFECTIVE
DATE SHALL NO LONGER EVIDENCE OWNERSHIP OF SHARES OF ACQUIROR COMMON STOCK AND
ALL RIGHTS OF THE HOLDER OF SUCH CERTIFICATE, AS A STOCKHOLDER OF ACQUIROR WITH
RESPECT TO THE SHARES PREVIOUSLY EVIDENCED BY SUCH CERTIFICATE, SHALL CEASE. If
any Company Stock Certificate shall have been lost, stolen or destroyed,
Acquiror may, in its discretion and as a condition precedent to the issuance of
any certificate representing Acquiror Common Stock, require the owner of such
lost, stolen or destroyed Company Stock Certificate to provide an appropriate
affidavit and to deliver a bond (in such sum as Acquiror may reasonably direct)
as indemnity against any claim that may be made against the Exchange Agent,
Acquiror or the Surviving Corporation with respect to such Company Stock
Certificate.
(c) No dividends or other distributions declared or made with
respect to Acquiror Common Stock with a record date after the Effective Date
shall be paid to the holder of any unsurrendered Company Stock Certificate with
respect to the shares of Acquiror Common Stock which such holder has the right
to receive upon surrender thereof until such holder surrenders such Company
Stock Certificate in accordance with this Section 16 (at which time such holder
shall be entitled, subject to the effect of applicable escheat or similar laws,
to receive all such dividends and distributions, without interest).
(d) Any portion of the Exchange Fund that remains undistributed to
holders of the Company Stock Certificates as of the date 180 days after the date
on which the Merger becomes effective shall be delivered to Acquiror upon
demand, and any holders of Company Stock Certificates who have not theretofore
surrendered their Company Stock Certificates in accordance with this Section 16
shall thereafter look only to Acquiror for satisfaction of their claims for
Acquiror Common Stock, cash in lieu of fractional shares of Acquiror Common
Stock and any dividends or distributions with respect to Acquiror Common Stock.
(e) Each of the Exchange Agent, Acquiror and the Surviving
Corporation shall be entitled to deduct and withhold from any consideration
payable or otherwise deliverable pursuant to this Agreement to any holder or
former holder of Company Common Stock such amounts as may be required to be
deducted or withheld therefrom under the Code or any provision of state, local
or foreign tax law or under any other applicable law or regulation. To the
extent such amounts are so deducted or withheld, such amounts shall be treated
for all purposes under this Plan as having been paid to the person or entity to
whom such amounts would otherwise have been paid.
(f) Neither Acquiror nor the Surviving Corporation shall be liable
to any holder or former holder of Company Common Stock or to any other person or
entity with respect to any shares of Acquiror Common Stock (or dividends or
distributions with respect thereto), or for any cash amounts, delivered to any
public official pursuant to any applicable abandoned property law, escheat law
or similar law or regulation.
17. TAX CONSEQUENCES. For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section 368 of the
Code. The parties to this Agreement hereby adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Treasury Regulations.
A-5
18. ACCOUNTING CONSEQUENCES. For financial reporting purposes, the Merger
is intended to be accounted for as a "pooling of interests."
19. 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 has
been duly signed and filed with the proper officials of the State of Florida.
20. 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. The Company may agree to any amendment
to this Plan, whether before or after the adoption and approval of this Plan and
the Reorganization Agreement and the approval of the Merger by the Company's
shareholders(as contemplated by the Reorganization Agreement); provided,
however, that after any such adoption and approval of this Plan and the
Reorganization Agreement and approval of the Merger by the Company's
shareholders, no amendment which would result in a decrease in the Exchange
Ratio or have a material adverse effect on the Company's shareholders may be
made without the further approval of the Company's shareholders. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. REFERENCES. All words used in this Plan shall be construed to be of
such number and gender as the context requires or permits.
A-6
IN WITNESS WHEREOF, each undersigned corporation has caused this Agreement
and Plan of Merger to be signed by a duly authorized officer as of the date
first stated above.
FDP CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board & President
SUNGARD DATA SYSTEMS INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Corporate Development
DEVELOPMENT CORP.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
A-7
