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EXHIBIT 2.3
AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated this 31st day of October, 1996, pursuant to
Section 252(c) of the General Corporation Law of Delaware, between Systems &
Programming Resources of Tulsa, Inc., an Oklahoma corporation ("SPR Tulsa"),
and SPR Inc., a Delaware corporation, which corporations collectively are
referred to herein as the "Constituent Corporations."
WITNESSETH that:
WHEREAS, the Constituent Corporations desire to merge into a single
corporation;
WHEREAS, SPR Tulsa is duly organized, existing and in good standing
under the laws of the State of Oklahoma and has 50,000 shares of authorized
common stock, 1,000 shares of which are issued and outstanding;
WHEREAS, SPR Inc. is duly organized, existing and in good standing
under the laws of the State of Delaware and has 16,000,000 shares of authorized
capital stock, consisting of 13,000,000 shares of common stock and 3,000,000
shares of preferred stock;
WHEREAS, the Boards of Directors of the Constituent Corporations have
determined that it is in the best interests of the Constituent Corporations and
their respective shareholders that SPR Tulsa be merged into SPR Inc. and the
shareholders of the Constituent Corporations have approved the proposed merger.
NOW THEREFORE, the Constituent Corporations, in consideration of the
mutual covenants, agreements and provisions hereinafter contained do hereby
prescribe the terms and conditions of said merger and the mode of carrying the
same into effect as follows:
FIRST: SPR Tulsa shall be and hereby is merged into SPR Inc. and SPR
Inc. shall be the surviving corporation. Such transaction shall hereinafter be
referred to as the "Merger."
SECOND: The Certificate of Incorporation of the surviving corporation
as in effect on the date of the Merger shall continue in full force and effect
as the Certificate of Incorporation of the surviving corporation.
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THIRD: The manner of converting the outstanding shares of the capital
stock of each of the Constituent Corporations into the shares or other
securities of the surviving corporation shall be as follows:
(a) Each share of SPR Inc. common stock which shall be issued and
outstanding on the effective date of this Agreement shall remain issued and
outstanding.
(b) Subject to the provisions of paragraph (c), each share of SPR
Tulsa common stock which shall be outstanding immediately prior to the Effective
Date shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted as of the Effective Date into the right to receive
1,295.142 shares of SPR Inc. common stock.
(c) No certificates for fractional shares shall be issuable. If
any fractional shares would otherwise be delivered but for the preceding
sentence, such shares in all circumstances will be rounded up or down to the
nearest whole number of SPR Inc. common shares.
(d) Each holder of SPR Tulsa common stock on the Effective Date
shall be entitled, upon the surrender to SPR Inc. of the certificate or
certificates for his shares of SPR Tulsa stock for cancellation, to receive a
certificate or certificates representing the number of shares of SPR Inc. common
stock into which the shares of SPR Tulsa common stock shall have been converted
in the Merger under paragraphs (b) and (c) above. Until so presented and
surrendered in exchange for a certificate or certificates of SPR Inc. common
stock, each certificate which represents issued and outstanding shares of SPR
Tulsa common stock shall be deemed for all corporate purposes to evidence the
ownership of the number of shares of SPR Inc. common stock into which the shares
of SPR Tulsa shall have been converted in the Merger.
FOURTH: The terms and conditions of the Merger are as follows:
(a) The By-laws of SPR Inc. as they shall exist on the Effective
Date of the Merger shall be and remain the bylaws of SPR Inc. until the same
shall be altered, amended or repealed as therein provided.
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(b) The directors and officers of SPR Inc. shall continue in
office until the next annual meetings of stockholders and directors and until
their successors shall have been elected and qualified.
(c) The effective date of the Merger (the "Effective Date") shall
be October 31, 1996, or the earliest date thereafter that the proper
Certificate of Merger is filed in the office of the Secretary of State of
Delaware.
(d) Upon the Merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other
assets of every kind and description of SPR Tulsa shall be transferred to,
vested in, and devolve upon, SPR Inc. without further act or deed and all
property, rights, and every other interest of SPR Inc. and SPR Tulsa shall be
as effectively the property of SPR Inc. as they were of SPR Inc. and SPR Tulsa
respectively. SPR Tulsa hereby agrees from time to time, as and when requested
by SPR Inc. or by its successors or assigns, to execute and deliver or cause
to be executed and delivered all such deeds and instruments and to take or
cause to be taken such further or other action as SPR Inc. may deem necessary
or desirable in order to vest in and confirm to SPR Inc. title to and
possession of any property of SPR Tulsa acquired or to be acquired by reason of
or as a result of the Merger herein provided for and otherwise to carry out the
interest and purposes hereof and the proper officers and directors of SPR Tulsa
and the proper officers and directors of SPR Inc. are fully authorized in the
name of SPR Tulsa or otherwise to take any and all such action.
FIFTH: The Constituent Corporations hereby represent and warrant as
follows:
(a) Authority; Enforceability. The execution, delivery and
performance of this Agreement, and the consummation of transactions
contemplated herein, have been duly and validly authorized by all necessary
corporate action by each of the Constituent Corporations. This Agreement
represents the legal, valid and binding obligation of each of the Constituent
Corporations and is enforceable against each of them in accordance with its
terms except, in all
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cases, as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(b) No Violation. Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions contemplated herein,
nor compliance with any of the provisions hereof will (i) violate or conflict
or result in a breach of any provision of each respective Constituent
Corporation's Articles of Incorporation or By-Laws, (ii) constitute or result
in the breach of, or default under, any material note, mortgage, indenture,
license, agreement, lease, security or other material instrument or obligation
to which each Constituent Corporation is a party or by which either of them or
any of their respective properties may be subject or (iii) result in a
violation of any statute or governmental regulation, or any judgment or decree
of any court or governmental authority, to which either of the Constituent
Corporations is subject.
SIXTH: This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and all such counterparts shall
constitute one instrument.
SEVENTH: Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be amended or terminated and abandoned by
the Board of Directors of any Constituent Corporation at any time prior to the
date of filing the Certificate of Merger with the Secretary of State, provided
that an amendment made subsequent to the adoption of the Agreement by the
stockholders of any Constituent Corporation shall not (1) alter or change the
amount or kind of shares to be received in exchange for or on conversion of all
or any of the shares of such Constituent Corporation, (2) alter or change any
term of the Certificate of Incorporation of SPR Inc. to be effected by the
Merger, or (3) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of
any Shares of common stock of such Constituent Corporation.
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IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors have caused these presents to be executed by the President
and Secretary of each party hereto as the respective act, deed and agreement of
each of said corporations, on this 31st day of October, 1996.
SPR INC.
By: /s/ Robert M. Figliulo
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Robert M. Figliulo
Its: President
By: /s/ David A. Figliulo
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David A. Figliulo
Its: Secretary
SYSTEMS & PROGRAMMING RESOURCES
OF TULSA, INC.
By: /s/ Michael J. Fletcher
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Michael J. Fletcher
Its: President
By: /s/ Rene M. Potter
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Rene M. Potter
Its: Secretary
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