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EXHIBIT B
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement"), dated as of January
10, 1999, by and among Metamor Worldwide, Inc., a Delaware corporation
("Metamor"), Metamor Acquisition Sub #19, Inc., a Delaware corporation and a
wholly owned subsidiary of Metamor ("Merger Sub"), and SPR Inc., a Delaware
corporation ("SPR"). Merger Sub and SPR are hereinafter sometimes referred to as
the "Merging Corporations."
W I T N E S S E T H:
WHEREAS, the respective boards of directors of Metamor and SPR deem it
desirable and in the best interests of their respective corporations and their
respective stockholders that Merger Sub be merged with and into SPR, pursuant to
the provisions of Section 251 of the Delaware General Corporation Law, as
amended from time to time ("DGCL"), in exchange for the consideration provided
for in this Agreement and have proposed, declared advisable, and approved such
merger pursuant to this Agreement, which has been duly approved by resolutions
of the respective boards of directors of Metamor and SPR; and
WHEREAS, for federal income tax purposes, it is intended that the
merger qualify as a reorganization under the provisions of Section 368(a) of the
United States Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and in order to set forth the terms
and conditions of the Merger (as hereinafter defined), the mode of carrying the
same into effect, the manner and basis of converting the presently outstanding
shares of common stock, par value $.01 per share ("SPR Common Stock"), of SPR
into shares of common stock, par value $.01 per share ("Metamor Common Stock"),
of Metamor, and such other details and provisions as are deemed necessary or
proper, the parties hereto agree as follows:
ARTICLE I
MERGER
1.1. The Merger. Subject to and in accordance with the terms and
conditions of this Agreement, at the Effective Time (as hereinafter defined) the
parties hereto shall cause the Merger Sub to be merged with and into SPR (the
"Merger") by filing a certificate of merger as contemplated by the DGCL,
together with any required related certificates, with the Secretary of State of
the State of Delaware, whereby the separate existence of Merger Sub shall cease,
and SPR shall (i) continue as the surviving corporation (sometimes referred to
herein as the "Surviving Corporation") under the corporate name "SPR Inc.", (ii)
be governed by the laws of the State of Delaware, and (iii) succeed to and
assume all of the rights, properties and obligations of Merger Sub and SPR in
accordance with the DGCL. For purpose of this Agreement, "Merging Corporations"
refers to SPR and Merger Sub, collectively.
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1.2. Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxx & Xxxxxx
L.L.P., 2300 First City Tower, 0000 Xxxxxx, Xxxxxxx, Xxxxx 00000, as soon as
reasonably practicable after the satisfaction or waiver of the conditions set
forth in Article V (other than the conditions with respect to actions the
respective parties will take at the Closing itself) or at such other time and
place and on such other date as Metamor and SPR shall agree; provided, that the
conditions set forth in Article V shall have been satisfied or waived at or
prior to such time. The date on which the Closing occurs is herein referred to
as the "Closing Date."
1.3. Effective Time. As soon as practicable on the Closing Date, the
parties hereto will cause the Merger to become effective by filing with the
Secretary of State of the State of Delaware, a certificate of merger in such
form as required by, and executed in accordance with, the relevant provisions of
the DGCL (the time of filing the certificate of merger with the Secretary of
State of the State of Delaware being the "Effective Time").
1.4. Governing Law and Certificate of Incorporation of Surviving
Corporation. The laws of the State of Delaware shall continue to govern the
Surviving Corporation. At the Effective Time, the Certificate of Incorporation
of the Surviving Corporation shall be amended in its entirety as set forth in
Exhibit 1.4.
1.5. Bylaws of Surviving Corporation. Effective as of the Effective
Time, the bylaws of Merger Sub shall be the bylaws of the Surviving Corporation
until altered, amended, or repealed, or until new bylaws shall be adopted in
accordance with the provisions of law, the certificate of incorporation and the
bylaws.
1.6. Directors of Surviving Corporation.
1.6.1. Directors of Surviving Corporation. The directors of
Merger Sub immediately prior to the Effective Time shall constitute the
board of directors of the Surviving Corporation, and shall hold office
until the first annual meeting of stockholders of the Surviving
Corporation next following the Effective Time.
1.6.2. Vacancies. At or after the Effective Time, if a vacancy
shall exist for any reason in the board of directors of the Surviving
Corporation, such vacancy shall be filled in the manner provided in the
certificate of incorporation and/or bylaws of the Surviving
Corporation.
1.7. Capital Stock of Surviving Corporation. The authorized number of
shares of capital stock of the Surviving Corporation, and the par value,
designations, preferences, rights, and limitations thereof, and the express
terms thereof, shall be as set forth in the certificate of incorporation.
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1.8. Conversion of Securities upon Merger.
1.8.1. General. The manner and basis of converting the issued
and outstanding shares of the capital stock of SPR into shares of the
capital stock of Metamor shall be as hereinafter set forth in this
Section 1.8.
1.8.2. Conversion of SPR Common Stock. At the Effective Time,
each share of SPR Common Stock issued and outstanding immediately prior
to the Effective Time, without any action on the part of the holders
thereof, shall automatically become and be converted into a fraction of
a fully paid and nonassessable share of issued and outstanding Metamor
Common Stock equal to 0.80 (the "Exchange Ratio"). The shares of
Metamor Common Stock to be issued in connection with the Merger (the
"Metamor Shares") are hereinafter referred to collectively as the
"Merger Consideration."
1.8.3. Exchange of SPR Common Stock Certificates. Prior to the
Effective Time, Metamor (after consultation with and approval of SPR)
shall select a reputable bank or trust company to act as the exchange
agent under this Agreement. As of the Effective Time, Metamor shall
deposit with the exchange agent, for the benefit of holders of shares
of SPR Common Stock, for exchange in accordance with this Agreement,
certificates representing shares of Metamor Common Stock issuable
pursuant to this Agreement and cash sufficient to make payments in lieu
of fractional share interests. Promptly after the Effective Time,
Metamor shall cause the exchange agent to mail to each person who was,
immediately prior to the Effective Time, a holder of record of SPR
Common Stock a form of letter of transmittal (mutually agreed to by
Metamor and SPR) and instructions for use in effecting the surrender of
stock certificates that, prior to the Effective Time, represented
shares of SPR Common Stock, in exchange for certificates representing
shares of Metamor Common Stock and a cash payment in lieu of fractional
share interests. Commencing at the Effective Time, each holder of an
outstanding certificate or certificates theretofore representing shares
of SPR Common Stock may surrender the same to the exchange agent, and
such holder shall be entitled upon such surrender to receive in
exchange therefor a certificate or certificates representing the number
of whole Metamor Shares into which the shares of SPR Common Stock
theretofore represented by the certificate or certificates so
surrendered shall have been converted as aforesaid, cash in lieu of
fractional share interests and any unpaid dividends payable in
accordance with this Agreement. However, before surrender, each
outstanding certificate representing issued and outstanding SPR Common
Stock shall after the Effective Time be deemed, for all purposes, only
to evidence ownership of the number of whole Metamor Shares into which
such shares have been so converted. In the event of a transfer of
ownership of SPR Common Stock which is not registered in the transfer
records of SPR, a certificate representing the appropriate number of
shares of Metamor Common Stock may be issued to a person other than the
person in whose name the certificate so surrendered is registered, if,
upon presentation to the exchange agent, such certificate shall be
properly endorsed or otherwise be in proper form for transfer and the
person requesting such issuance shall pay any transfer or other taxes
required by reason of the issuance of shares of Metamor Common Stock to
a person other than the registered holder of such certificate or
establish to the reasonable satisfaction of Metamor that such tax has
been paid or is not applicable. Unless and until such outstanding
certificates formerly representing SPR Common Stock are
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so surrendered, no dividend payable to holders of record of Metamor
Common Stock as of any date after the Effective Time shall be paid to
the holders of such outstanding certificates in respect thereof. Upon
surrender of such outstanding certificates, however, there shall be
paid to the holders of Metamor Shares represented thereby the amount of
dividends, if any, which theretofore (but after the Effective Time)
became payable with respect to such Metamor Shares. No interest shall
be payable with respect to the payment of such dividends on surrender
of outstanding certificates. The holder of fractional share interests,
as such, shall not be entitled to any dividends in respect thereof or
to any distribution in respect thereof in the event of liquidation or
to any voting or other privileges in respect thereof of a stockholder
of Metamor. If any stock certificate that, prior to the Effective Time,
represented shares of SPR Common Stock shall have been lost, stolen or
destroyed, then, upon the making of an affidavit of that fact by the
person claiming such stock certificate to be lost, stolen or destroyed
(and, if required by Metamor, the posting by such person of a bond in
such reasonable amount as Metamor may direct as indemnity against any
claim that may be made against it with respect to such stock
certificate), Metamor shall cause the exchange agent to issue in
exchange for such lost, stolen or destroyed stock certificate a
certificate representing the appropriate number of shares of Metamor
Common Stock, cash in lieu of any fractional share interests and any
unpaid dividends, issuable or payable in accordance with this
Agreement.
1.8.4. Metamor Fractional Shares. No certificates for
fractional share interests of Metamor Common Stock will be issued, but,
in lieu thereof, Metamor will settle all such fractional share
interests in cash on the basis of the closing price for Metamor Common
Stock on the Nasdaq National Market (as reported in The Wall Street
Journal) on the last trading day before the Effective Time.
1.8.5. Conversion of Merger Sub Common Stock. At the Effective
Time, each share of Merger Sub Common Stock then issued and
outstanding, without any action on the part of the holder thereof,
shall automatically become and be converted into one share of SPR
Common Stock.
1.9. Treatment of Stock Options.
1.9.1. At the Effective Time, automatically and without any
action on the part of the holder thereof, each option (whether or not
vested) to purchase shares of SPR Common Stock granted under all SPR
stock option plans, other than any stock option plan intended to be
qualified under Section 423 of the Code, (each such option a "SPR
Option" and each such plan a "SPR Stock Option Plan"), which remains as
of such time unexercised in whole or in part, shall be assumed by
Metamor and become an option (an "Assumed Option") to purchase that
number of shares of Metamor Common Stock obtained by multiplying the
number of shares of SPR Common Stock issuable upon the exercise of such
SPR Option by the Exchange Ratio at an exercise price per share equal
to the per share exercise price of such SPR Option divided by the
Exchange Ratio. If the foregoing calculation results in an Assumed
Option being exercisable for a fraction of a share of Metamor Common
Stock, the number of shares of Metamor Common Stock subject to such
Assumed Option shall be rounded down to the nearest whole number of
shares, and the total exercise price for such
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Assumed Option shall be reduced by the exercise price of the fractional
share. The Assumed Option (1) shall provide the optionee with the same
vesting and other rights that he had under the SPR Option before such
assumption and (2) shall not give the optionee additional vesting or
other rights which he did not have under the SPR Option before such
assumption.
1.9.2. As soon as practicable after the Effective Time,
Metamor (1) shall deliver to the holders of the SPR Options appropriate
agreements evidencing Metamor's assumption of such options and (2)
shall file a registration statement on Form S-8 (or any successor or
other appropriate forms) with respect to the shares of Metamor Common
Stock issuable in respect of the Assumed Options. Metamor shall use all
reasonable efforts to maintain the effectiveness of such registration
statement (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such Assumed Options
remain outstanding.
1.9.3. At the Effective Time, Metamor agrees to assume the SPR
Stock Option Plans with such amendments thereto as may be required to
reflect the Merger, including, without limitation, the substitution of
Metamor Common Stock for SPR Common Stock thereunder.
1.9.4. The Board of Directors of SPR (or a duly appointed
committee thereof responsible for the administration of the SPR Stock
Option Plans in accordance with the terms of each such plan) shall,
prior to or as of the Effective Time, take all necessary actions,
pursuant to and in accordance with the terms of the SPR Stock Option
Plans and the instruments evidencing the SPR Options, to provide (1)
for the conversion of the SPR Options into the Assumed Options in
accordance with Subparagraph 1.9.1 above and (2) that no consent of the
holders of the SPR Options is required in connection with such
conversion.
1.10. Assets and Liabilities.
1.10.1. Assets and Liabilities of Merging Corporations Become
Those of Surviving Corporation. At the Effective Time, all rights,
privileges, powers, immunities, and franchises of each of the Merging
Corporations, both of a public and private nature, and all property,
real, personal, and mixed, and all debts due on whatever account, as
well as stock subscriptions and all other choses or things in action,
and all and every other interest of or belonging to or due to either of
the Merging Corporations, shall be taken by and shall be vested in the
Surviving Corporation without further act or deed, and all such rights,
privileges, powers, immunities, and franchises, property, debts, choses
or things in action, and all and every other interest of each of the
Merging Corporations shall be thereafter as effectually the property of
the Surviving Corporation as they were of the respective Merging
Corporations, and the title to any real or other property, or any
interest therein, whether vested by deed or otherwise, in either of the
Merging Corporations, shall not revert or be in any way impaired by
reason of the merger, provided, however, that all rights of creditors
and all liens upon any properties of each of the Merging Corporations
shall be preserved unimpaired, and all debts, liabilities,
restrictions, obligations, and duties of the respective Merging
Corporations, including without limitation all obligations, liabilities
and duties as lessee under any existing lease, shall thenceforth attach
to the Surviving Corporation and may be enforced against and by it to
the same extent as if such debts, liabilities, duties, restrictions and
obligations had been incurred or contracted by it. Any action or
proceeding
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pending by or against either of the Merging Corporations may be
prosecuted to judgment as if the merger had not taken place, or the
Surviving Corporation may be substituted in place of either of the
Merging Corporations.
1.10.2. Conveyances to Surviving Corporation. The Merging
Corporations hereby agree, respectively, that from time to time, as and
when requested by the Surviving Corporation, or by its successors and
assigns, they will execute and deliver or cause to be executed and
delivered, all such deeds, conveyances, assignments, permits, licenses
and other instruments, and will take or cause to be taken such further
or other action as the Surviving Corporation, its successors or
assigns, may deem necessary or desirable to vest or perfect in or
confirm to the Surviving Corporation, its successors and assigns, title
to and possession of all the property, rights, privileges, powers,
immunities, franchises, and interests referred to in this Section
1.10.2 and otherwise carry out the intent and purposes of this
Agreement.
1.10.3. Accounting Treatment. The assets and liabilities of
the Merging Corporations shall be taken up on the books of the
Surviving Corporation and will be accounted for on the
"pooling-of-interests" method under the requirements of Accounting
Principles Board Opinion No. 16, Business Combinations, and the related
published interpretations of the American Institute of Certified Public
Accountants, the Financial Accounting Standards Board, and the
published rules and regulations of the Securities and Exchange
Commission (the "Commission") or its staff.
1.10.4. Unclaimed Merger Consideration; No Escheat. Subject to
any contrary provision of governing law, all consideration deposited
with the exchange agent or held by Metamor for the payment of the
consideration into which the outstanding shares of SPR Common Stock
shall have been converted, and remaining unclaimed for one year after
the Effective Time, shall be paid or delivered to Metamor; and the
holder of any unexchanged certificate or certificates which before the
Effective Time represented shares of SPR Common Stock shall thereafter
look only to Metamor for exchange or payment thereof upon surrender of
such certificate or certificates to Metamor.
1.11. Taking of Necessary Action; Further Action. Metamor, Merger
Sub and SPR shall take all such reasonable and lawful action as may be
necessary or appropriate in order to effectuate the Merger as promptly as
possible. If, at any time after the Effective Time, any such further action is
necessary or desirable to carry out the purposes of this Agreement and to vest
the Surviving Corporation with full right, title and possession to all assets,
property, rights, privileges, powers and franchises of SPR or Merger Sub, such
corporations shall direct their respective officers and directors to take all
such lawful and necessary action.
1.12. Material Adverse Effect. "Material Adverse Effect" or
"Material Adverse Change" means any effect, change, event, circumstance or
condition which when considered with all other effects, changes, events,
circumstances or conditions could reasonably be expected to materially
adversely affect the business, results of operations, financial condition or
prospects of Metamor or SPR, in each case including its respective subsidiaries
together with it taken as a whole, as the case may be. In no event shall any of
the following constitute a Material Adverse Effect or a Material Adverse
Change: (i) a change in the trading prices of either of Metamor's or SPR's
equity securities
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between the date hereof and the Effective Time, in and of itself; (ii) effects,
changes, events, circumstances or conditions generally affecting the industry in
which either Metamor or SPR operate or arising from changes in general business
or economic conditions; (iii) effects, changes, events, circumstances or
conditions directly attributable to (a) out-of-pocket fees and expenses
(including without limitation legal, accounting, investigatory, investment
banking, and other fees and expenses) incurred in connection with the
transactions contemplated by this Agreement, or (b) the payment by Metamor or
SPR of all amounts due to any officers or employees of SPR under employment
contracts, non-competition agreements, employee benefit plans or severance
arrangements; (iv) any effects, changes, events, circumstances or conditions
resulting from any change in law or generally accepted accounting principles,
which affect generally entities such as Metamor and SPR; and (v) any effect
resulting from compliance by Metamor or SPR with the terms of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SPR
SPR represents and warrants subject to the exceptions specifically
described in writing in the respective sections of the disclosure schedule
delivered by SPR to Metamor and dated the date hereof (the "SPR Disclosure
Schedule") as follows:
2.1. Organization and Standing. SPR is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has full requisite corporate power and authority to carry on its business as it
is currently conducted, and to own and operate the properties currently owned
and operated by it, and is duly qualified or licensed to do business and is in
good standing as a foreign corporation authorized to do business in all
jurisdictions in which the character of the properties owned or the nature of
the business conducted by it would make such qualification or licensing
necessary, except where the failure to be so qualified or licensed could not
reasonably be expected to have a Material Adverse Effect on SPR.
2.2. Authorization; Approvals; No Violation.
2.2.1. Authorization of Agreement. SPR has all requisite
corporate power and authority to execute and deliver this Agreement
and, subject, in the case of this Agreement, to adoption of this
Agreement by the holders of a majority of the outstanding shares of SPR
Common Stock (as defined herein) in accordance with the applicable
provisions of the DGCL and SPR's certificate of incorporation and
bylaws to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby. The execution and
delivery by SPR of this Agreement and the performance by SPR of its
obligations hereunder have been duly and validly authorized by all
requisite corporate action on the part of SPR (other than, with respect
to the Merger, the adoption of this Agreement by the holders of a
majority of the outstanding shares of SPR Common Stock in accordance
with the applicable provisions of the DGCL and SPR's certificate of
incorporation and bylaws). This Agreement has been duly executed and
delivered by SPR and (assuming due authorization, execution and
delivery hereof by the other parties hereto) constitutes the legal,
valid and binding obligation of SPR, enforceable (subject to normal
equity principles) against SPR in accordance with its terms, except as
enforceability may be limited by bankruptcy,
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insolvency, reorganization, debtor relief or similar laws affecting the
rights of creditors generally.
2.2.2. Approvals. Except for the applicable requirements, if
any, of (a) the Securities Act of 1933, as amended (the "Securities
Act"), (b) the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (c) state securities or blue sky laws, (d) the
Xxxx-Xxxxx- Xxxxxx Antitrust Improvements Act of 1976 and the rules and
regulations promulgated thereunder, each as amended from time to time,
(collectively, "HSR"), (e) the filing and recordation of appropriate
merger documents as required by the DGCL and (f) those laws,
regulations and orders of any governmental authority noncompliance with
which could not reasonably be expected to have a Material Adverse
Effect on SPR, no filing or registration with, no waiting period
imposed by and no authorization of, any governmental authority is
required under any law, regulation or order of any governmental
authority applicable to SPR to permit SPR to execute, deliver or
perform this Agreement or to consummate the transactions contemplated
hereby.
2.2.3. No Violation. Assuming effectuation of all filings and
registrations with, termination or expiration of any applicable waiting
periods imposed by and receipt of all authorizations of governmental
authorities indicated as required in Section 2.2.2 and receipt of the
adoption of this Agreement by the holders of a majority of the
outstanding shares of SPR Common Stock as required by the DGCL and
SPR's certificate of incorporation and bylaws and except as set forth
in Section 2.2.2 of the SPR Disclosure Schedule, neither the execution
and delivery by SPR of this Agreement nor the performance by SPR of its
obligations hereunder will (a) violate or breach the terms of or cause
a default under (i) any law, regulation or order of any governmental
authority applicable to SPR, (ii) the certificate of incorporation or
bylaws of SPR or (iii) any contract or agreement to which SPR or any of
its subsidiaries is a party or by which it or any of its properties or
assets is bound, or (b) with the passage of time, the giving of notice
or the taking of any action by a third person, have any of the effects
set forth in clause (a) of this Section, except in any such case for
any matters described in this Section (other than clause (ii) hereof)
that could not reasonably be expected to have Material Adverse Effect
on SPR.
2.3. Capitalization. The authorized capitalization of SPR consists of
3,000,000 shares of preferred stock, par value $.01 per share, of which as of
the date hereof no shares were issued and outstanding, and 25,000,000 shares of
common stock, par value $.01 per share (the "SPR Common Stock"), of which at
December 31, 1998, 13,795,645 shares were issued and outstanding, 1,965,128
shares were reserved for issuance in conjunction with various employee benefit
plans; no shares of SPR Common Stock were held in SPR's treasury. All of such
outstanding shares are validly issued, fully paid and nonassessable, and were
not issued in violation of any preemptive rights of any stockholder. Section 2.3
of the SPR Disclosure Schedule sets forth a complete list as of the date of this
Agreement of all outstanding options, warrants or obligations of any kind to
issue any shares of capital stock of SPR, the owners thereof and the amounts
owned. There are no contracts, agreements or commitments or arrangements
obligating SPR to redeem, purchase or acquire, or offer to purchase or acquire,
any outstanding capital stock of SPR. There are no voting trusts, proxies or
other agreements, commitments or understandings of any character to which SPR is
a party or by which SPR is bound with respect to the voting of any shares of
capital stock of SPR.
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2.4. Subsidiaries. SPR has no subsidiaries existing as of the date
of this Agreement.
2.5. Reports and Financial Statements. SPR has previously furnished to
Metamor true and complete copies of (a) all of SPR's annual reports filed with
the Commission pursuant to the Exchange Act, since December 31, 1997, (b) SPR's
quarterly and other reports filed with the Commission since December 31, 1996,
(c) all definitive proxy solicitation materials filed by SPR with the Commission
since December 31, 1996, and (d) any of SPR's registration statements declared
effective by the Commission since December 31, 1996. The consolidated financial
statements of SPR included in SPR's most recent annual report on Form 10-K and
most recent quarterly report on Form 10-Q, and any other reports filed with the
Commission by SPR under the Exchange Act subsequent thereto (collectively, the
"SPR Reports") (i) were prepared in accordance with the published regulations of
the Commission and in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved and (ii) fairly
present the financial position for SPR as of the dates thereof and the results
of its operations and changes in financial position for the periods then ended
(except with respect to interim period financial statements, for normal year-end
adjustments which are not material); the SPR Reports were prepared in all
material respects in accordance with the requirements of the Securities Act and
the Exchange Act, as the case may be, and the applicable rules and regulations
of the Commission thereunder; and the SPR Reports did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Since December 31,
1996, SPR has filed with the Commission all reports required to be filed by SPR
under the Securities Act and the Exchange Act and the rules and regulations of
the Commission.
2.6. Liabilities. SPR does not have any material liabilities or
obligations, either accrued, absolute, contingent, or otherwise, or have any
knowledge of any potential material liabilities or obligations, other than those
(i) disclosed in the SPR Reports or (ii) set forth in Section 2.6 of the SPR
Disclosure Schedule.
2.7. No Undisclosed Contracts or Defaults. Except as may be specified
in the SPR Reports or Section 2.7 of the SPR Disclosure Schedule, SPR is not a
party to, or bound by, any material contract or arrangement of a nature required
to be filed as an exhibit to a periodic report filed by SPR under the Exchange
Act which is to be performed after the Effective Time, nor is SPR in default in
any material obligation or covenant on its part to be performed under any lease
or other contract that is material to the business of SPR.
2.8. Absence of Certain Changes and Events. Except as set forth in the
SPR Reports or in Section 2.8 of the SPR Disclosure Schedule, other than as a
result of the transactions contemplated by this Agreement, since September 30,
1998, there has not been:
2.8.1. Financial Change. Any adverse change in the financial
condition, operations, assets, liabilities or business of SPR which
could reasonably be expected to have a Material Adverse Effect on SPR;
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2.8.2. Property Damage. Any damage, destruction, or loss to
the business or properties of SPR (whether or not covered by insurance)
that could reasonably be expected to have a Material Adverse Effect on
SPR;
2.8.3. Dividends. Any declaration, setting aside, or payment
of any dividend or other distribution in respect of the SPR Common
Stock, or any direct or indirect redemption, purchase or any other
acquisition by SPR of any such stock;
2.8.4. Capitalization Change. Any change in the capital stock
or in the number of shares or classes of SPR's authorized or
outstanding capital stock as described in Section 2.3 (other than the
issuance of SPR Common Stock upon the exercise of outstanding options
to purchase SPR Common Stock or issuances pursuant to SPR's Employee
Stock Purchase Plan ("ESPP"));
2.8.5. Labor Disputes. Any labor dispute (other than routine
grievances) with SPR's employees or independent contractors; or
2.8.6. Other Material Changes. Any other event or condition
known to SPR particularly pertaining to and adversely affecting the
operations, assets or business of SPR which could reasonably be
expected to have a Material Adverse Effect on SPR.
2.9. Taxes.
2.9.1. Tax Returns Filed; Taxes Paid. Except as set forth in
Section 2.9 of the SPR Disclosure Schedule, and except with respect to
failures which, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect on SPR, (i) all returns and reports
("Tax Returns") of or with respect to any and all taxes, charges, fees,
levies, assessments, duties or other amounts payable to any federal,
state, local or foreign taxing authority or agency, including, without
limitation, (x) income, franchise, profits, gross receipts, minimum,
alternative minimum, estimated, ad valorem, value added, sales, use,
service, real or personal property, capital stock, license, payroll,
withholding, disability, employment, social security, workers
compensation, unemployment compensation, utility, severance, excise,
stamp, windfall profits, transfer and gains taxes, (y) customs, duties,
imposts, charges, levies or other similar assessments of any kind, and
(z) interest, penalties and additions to tax imposed with respect
thereto ("Tax" or "Taxes") which are required to be filed on or before
the Closing by or with respect to SPR have been or will be duly and
timely filed, (ii) all items of income, gain, loss, deduction and
credit or other items required to be included in each such Tax Return
have been or will be so included and all information provided in each
such Tax Return is and will be true, correct and complete, (iii) all
Taxes which have become or will become due with respect to the period
covered by each such Tax Return have been or will be timely paid in
full, (iv) all withholding Tax requirements imposed on or with respect
to SPR have been or will be satisfied in full in all respects, and (v)
no penalty, interest or other charge is or will become due with respect
to the late filing of any such Tax Return or late payment of any such
Tax.
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2.9.2. Open Returns Disclosed. All Tax Returns of or with
respect to SPR with unexpired or extended statutes of limitations which
have been audited by the applicable governmental authority are set
forth in Section 2.9 of the SPR Disclosure Schedule.
2.9.3. Extensions Disclosed. Except as set forth in Section
2.9 of the SPR Disclosure Schedule, there is not in force any extension
of time with respect to the due date for the filing of any Tax Return
of or with respect to SPR or any waiver or agreement for any extension
of time for the assessment or payment of any Tax of or with respect to
SPR.
2.9.4. Claims Disclosed. There is no claim against SPR for any
Taxes, and no assessment, deficiency or adjustment has been asserted or
proposed with respect to any Tax Return of or with respect to SPR other
than those disclosed (and to which are attached true and complete
copies of all audit or similar reports) in Section 2.9 of the SPR
Disclosure Schedule or which could not reasonably be expected to have a
Material Adverse Effect on SPR.
2.9.5. Scheduled Tax Liabilities Sufficient. The total amounts
set up as liabilities for current and deferred Taxes in the financial
statements referred to in Section 2.5 of this Agreement are sufficient
to cover in all material respects the payment of all Taxes, whether or
not assessed or disputed, which are, or are hereafter found to be, or
to have been, due by or with respect to SPR up to and through the
periods covered thereby.
2.9.6. Tax Allocation Agreements. SPR has previously delivered
to Metamor true and complete copies of each written Tax allocation or
sharing agreement and a true and complete description of each unwritten
Tax allocation or sharing arrangement affecting SPR.
2.9.7. No Tax Liens. Except for statutory liens for current
Taxes not yet due, no material liens for Taxes exist upon the assets of
SPR.
2.9.8. Change of Accounting Method. SPR will not be required
to include any amount in income for any taxable period beginning after
December 31, 1997 as a result of a change in accounting method of SPR
for any taxable period of SPR or pursuant to any agreement with any Tax
authority with respect to any such taxable period.
2.9.9. Partnerships; Foreign Corporations. Except as set forth
in Section 2.9 of the SPR Disclosure Schedule, none of the property of
SPR is held in an arrangement for which partnership Tax Returns are
being filed, and SPR does not own any interest in any controlled
foreign corporation (as defined in section 957 of the Code), passive
foreign investment company (as defined in section 1296 of the Code) or
other entity the income of which is required to be included in the
income of SPR.
2.9.10. Safe Harbor Leases; Tax-Exempt Use Property. Except as
set forth in Section 2.9 of the SPR Disclosure Schedule, none of the
property of SPR is subject to a safe- harbor lease (pursuant to section
168(f)(8) of the Internal Revenue Code of 1954 as in effect after the
Economic Recovery Tax Act of 1981 and before the Tax Reform Act of
1986) or
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is "tax-exempt use property" (within the meaning of section 168(h) of
the Code) or "tax-exempt bond financed property" (within the meaning of
section 168(g)(5) of the Code).
2.9.11. Section 341(f) Election. SPR has not made an election
under section 341(f) of the Code.
2.9.12. Actions Preventing Treatment as a Reorganization.
Neither SPR nor, to the knowledge of SPR, any of its affiliates has
taken or agreed to take any action that would prevent the Merger from
constituting a reorganization qualifying under the provisions of
Section 368(a) of the Code.
2.10. Intellectual Property.
2.10.1. Ownership. Section 2.10 of the SPR Disclosure Schedule
accurately identifies all software programs currently being sold or
licensed by SPR and all software products or programs under development
by SPR but not currently marketed (collectively, the "Software
Programs"). SPR owns full and unencumbered right and good and valid
title to the Software Programs, all material patents, trademarks,
service marks, trade names and copyrights (including registrations,
licenses and applications pertaining thereto) and all other material
intellectual property rights, trade secrets and other confidential or
proprietary information, processes and formulae used in its businesses
or otherwise necessary for the conduct of its businesses (the
"Intellectual Property"), free and clear of all mortgages, pledges,
liens, security interests, conditional sales agreements, encumbrances
or charges of any kind (collectively, an "Encumbrance"). Section 2.10
of the SPR Disclosure Schedule contains a complete list of all
registered trademarks and service marks, all reserved trade names, all
registered copyrights and all filed patent applications and issued
patents used in, or otherwise necessary for the conduct of, the
business of SPR as presently conducted.
2.10.2. Notices. Section 2.10 of the SPR Disclosure Schedule
sets forth the form and placement of the proprietary legends and
copyright notices displayed in or on the Software Programs. In no
instance has the eligibility of the Software Programs for protection
under applicable copyright law been forfeited to the public domain by
omission of any required notice or any other action.
2.10.3. Protection. SPR has in force the trade secret
protection program set forth in Section 2.10 of the SPR Disclosure
Schedule. To SPR's knowledge, there has been no violation of such
program by any person or entity. The source code and related technical
system documentation for the Software Programs (i) have at all times
been maintained by SPR in strict confidence, (ii) have been disclosed
by SPR only to employees and contractors who have had a "need to know"
the contents thereof in connection with the performance of their duties
to SPR and who have executed written agreements requiring the recipient
to keep the information in strict confidence.
2.10.4. Personnel. All personnel who now, or since November 1,
1996 have been employees, agents, consultants and contractors of SPR,
who have contributed to or participated in the conception and
development of the Software Programs, technical
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documentations, or Intellectual Property on behalf of SPR have executed
nondisclosure agreements in the form provided by SPR to Metamor.
2.10.5. Third-Party Software. Section 2.10 of the SPR
Disclosure Schedule contains a complete list of software libraries,
compilers and other third-party software used in the development of the
Software Programs. Section 2.10 of the SPR Disclosure Schedule lists
all license agreements for the use of all such software and, if any
such software is not licensed, the basis of the use of such software by
SPR. All use of each of such Software Program by SPR has been in full
compliance with the respective license agreement or other right of use
listed in Section 2.10 of the SPR Disclosure Schedule.
2.10.6. Software Performance. The Software Programs will
perform in accordance with the warranties set forth in the standard
end-user agreements listed in Section 2.12 of the SPR Disclosure
Schedule.
2.10.7. No Infringement. The Software Programs do not infringe
and will not infringe any copyright or trade secret of any person or
entity, and, to the knowledge of SPR, no part of the Software Programs
nor the use thereof for their intended purposes infringes or will
infringe any valid and subsisting patent or other exclusionary right of
any third party. No claims have been asserted against SPR by any person
or entity as to the use of any of the Intellectual Property, and, to
the knowledge of SPR, there is no basis for any such claims.
2.10.8. Integrity. Except with respect to demonstration or
trial copies, no portion of the Software Products contains any "back
door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus"
or other software routines or hardware components designed to permit
unauthorized access; to disable or erase software, hardware, or data;
or to perform any other such actions.
2.10.9. Contract Performance. SPR has observed all material
provisions of, and performed all of their material obligations under,
the Licenses, including, but not limited to, the performance of its
product maintenance obligations. SPR has not taken any action that
could cause, or failed to take any action, the failure of which could
cause, (i) any material source code, trade secret or other Intellectual
Property relating to the Software Programs to be released from an
escrow or otherwise made available to any person or entity other than
those persons described in Section 2.10.3, dedicated to the public or
otherwise placed in the public domain or (ii) any other material
adverse effect to the protection of the Software Programs under trade
secret, copyright, patent or other intellectual property laws.
2.10.10. Year 2000. The Software Programs (i) are year 2000
compliant and compatible, which shall include, but is not limited to,
date data century recognition, and calculations that accommodate same
century and multi-century formulas and date values; (ii) operate or
will operate in accordance with their specifications prior to, during
and after the calendar year 2000 A.D.; and (iii) shall not end
abnormally or provide invalid or incorrect results as a result of date
data, specifically including date data which represents or references
different centuries or more than one century.
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2.11. Adequacy of Technical Documentation. The technical documentation
of the Software Programs (the "Technical Documentation") includes the source
code (with comments) for all Software Programs, as well as any pertinent
comments by or explanation that may be necessary to render such materials
understandable and usable. The Technical Documentation also includes any
programs (including compilers), "workbenches," tools and higher level (or
"proprietary") languages necessary for the development, maintenance and
implementation of the Software Programs.
2.12. Software Contracts.
2.12.1. End-User Agreements. Section 2.12.1 of the SPR
Disclosure Schedule sets forth a complete example of each of SPR's
standard license agreements with respect to the Software Programs (the
"Standard Licenses") and a complete list of each license of the
Software Programs which contains any material differences or deviations
from the Standard Licenses (together with the Standard Licenses, the
"Licenses"). All contracts identified in Section 2.12.1 of the SPR
Disclosure Schedule constitute only end-user agreements, each of which
grants the end user thereunder principally the nonexclusive right and
license to use an identified Software Program and related user
documentation, for internal purposes only, at the sites specified in
each agreement.
2.12.2. Marketing Agreements. Section 2.12.2 of the SPR
Disclosure Schedule sets forth a complete list of all contracts,
agreements, licenses, or other commitments or arrangements in effect
with respect to the marketing, remarketing, distribution, licensing or
promotion of (i) the Software Programs or any other Technical
Documentation or the Intellectual Property by any independent
salesperson, distributor, sublicensor or other remarketer or sales
organization or (ii) any third party's software products by SPR (the
"Marketing Agreements").
2.12.3. No Assignment. Other than the Licenses and the
Marketing Agreements, SPR has not granted, transferred or assigned any
right or interest in the Software Programs, the Technical Documentation
or the Intellectual Property to any person or entity.
2.13. Third-Party Components in Software Programs. Except as set forth
in Section 2.13 of the SPR Disclosure Schedule, the Software Programs and
Technical Documentation contain no programming or materials in which any third
party may claim superior, joint or common ownership, including any right or
license. Except as set forth in Section 2.13 of the SPR Disclosure Schedule, the
Software Programs and Technical Documentation do not contain derivative works of
any programming or materials not owned in their entirety by SPR.
2.14. Title to Properties. With minor exceptions which in the aggregate
are not material, and except for merchandise and other property sold, used or
otherwise disposed of in the ordinary course of business for fair value, SPR has
good and valid title to or valid leasehold interests in all its properties,
interests in properties and assets, real and personal, reflected in the most
recent balance sheet of SPR included in the SPR Reports, free and clear of any
Encumbrance of any nature whatsoever, except (i) liens and Encumbrances
reflected in the most recent balance sheet of SPR included in the SPR Reports,
(ii) liens for current taxes not yet due and payable, and (iii) such
imperfections of title, easements and Encumbrances, if any, as are not
substantial in character,
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amount, or extent and do not and will not materially detract from the value, or
interfere with the present use, of the property subject thereto or affected
thereby, or otherwise materially impair business operations of SPR. All leases
pursuant to which SPR leases (whether as lessee or lessor) any substantial
amount of real or personal property are in good standing, valid and effective;
and there is not, under any such leases, any existing or prospective default or
event of default or event which with notice or lapse of time, or both, would
constitute a default by SPR and in respect to which SPR has not taken adequate
steps to prevent a default from occurring. The buildings and premises of SPR
that are used in its business are in good and sufficient operating condition and
repair for the continued conduct of SPR's business on a basis consistent with
past practice, subject to ordinary wear and tear. All major items of equipment
of SPR are in good and sufficient operating condition and in a state of
reasonable maintenance and repair for the continued conduct of SPR's business on
a basis consistent with past practice, ordinary wear and tear excepted, and are
free from any known defects except as may be repaired by routine maintenance and
such minor defects as do not substantially interfere with the continued use
thereof in the conduct of normal operations.
2.15. Litigation. Except to the extent set forth in the SPR Reports or
in Section 2.15 of the SPR Disclosure Schedule, there is no suit, action, or
legal, administrative, arbitration, or other proceeding or governmental
investigation pending to which SPR is a party or, to the knowledge of SPR, might
become a party or which particularly affects SPR, which would involve a
liability in excess of $100,000, nor is any change in the zoning or building
ordinances directly affecting the real property or leasehold interests of SPR,
pending or, to the knowledge of SPR, threatened.
2.16. Environmental Compliance. Except as set forth in Section 2.16 of
the SPR Disclosure Schedule:
2.16.1. Environmental Conditions. There are no environmental
conditions or circumstances, such as the presence or release of any
hazardous substance, on any real property owned by SPR as a result of
the actions of SPR or, to its knowledge, of any third party or
otherwise, that could reasonably be expected to have a Material Adverse
Effect on SPR.
2.16.2. Permits, etc. SPR has in full force and effect all
environmental permits, licenses, approvals and other authorizations
required to conduct its operations and is operating in material
compliance thereunder.
2.16.3. Compliance. SPR's operations and use of its assets do
not violate any applicable federal, state or local law, statute,
ordinance, rule, regulation, order or notice requirement pertaining to
(a) the condition or protection of air, groundwater, surface water,
soil, or other environmental media, (b) the environment, including
natural resources or any activity which affects the environment, or (c)
the regulation of any pollutants, contaminants, waste, substances
(whether or not hazardous or toxic), including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act (49
U.S.C. ss. 9601 et seq.), the Hazardous Materials Transportation Act
(49 U.S.C. ss. 1801 et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. ss. 1609 et seq.), the Clean Water Act (33 U.S.C. 1051
et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic
Substances Control Act (17 U.S.C. ss. 2601 et seq.), the Safe Drinking
Water Act (42 U.S.C. ss. 201 and ss. 300f et seq.),
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the Rivers and Harbors Act (33 U.S.C. ss. 401 et seq.), the Oil
Pollution Act (33 U.S.C. ss. 2701 et seq.) and analogous state and
local provisions, as any of the foregoing may have been amended or
supplemented from time to time (collectively the "Applicable
Environmental Laws"), except for violations which, either singly or in
the aggregate, could not reasonably be expected to have a Material
Adverse Effect on SPR.
2.16.4. Environmental Claims. No notice has been served on SPR
from any entity, governmental agency or individual regarding any
existing, pending or threatened investigation or inquiry related to
alleged violations under any Applicable Environmental Laws, or
regarding any claims for remedial obligations or contribution under any
Applicable Environmental Laws, other than any of the foregoing which,
either singly or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect on SPR.
2.16.5. Renewals. SPR does not know of any reason it would not
be able to renew any of the permits, licenses, or other authorizations
required pursuant to any Applicable Environmental Laws to operate and
use any of SPR's assets for their current purposes and uses.
2.17. Compliance with Other Laws. Except as set forth in the SPR
Reports or in Section 2.17 of the SPR Disclosure Schedule, SPR is not in
violation of or in default with respect to, or in alleged violation of or
alleged default with respect to, the Occupational Safety and Health Act (29
U.S.C. ss. 651 et seq.) as amended ("OSHA"), or any other applicable law or any
applicable rule, regulation, or any writ or decree of any court or any
governmental commission, board, bureau, agency, or instrumentality, or
delinquent with respect to any report required to be filed with any governmental
commission, board, bureau, agency or instrumentality, except for violations or
defaults which, either singly or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect on SPR.
2.18. Finder's Fee. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by SPR and its counsel
directly with Metamor and its counsel, without the intervention of any other
person as the result of any act of SPR, and so far as is known to SPR, without
the intervention of any other person in such manner as to give rise to any valid
claim against any of the parties hereto for a brokerage commission, finder's fee
or any similar payments, other than financial advisory fees to be paid (i) by
Metamor to Xxxxxxx, Xxxxx & Co. ("Goldman") in connection with the transaction
under financial arrangements disclosed to SPR and (ii) by SPR to Xxxxxxx Xxxxx
Xxxxxx ("Salomon") in connection with the transaction under financial
arrangements disclosed to Metamor.
2.19. Employee Benefit Plans.
2.19.1. Definitions. For purposes of this Agreement: "ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as
amended; "Code" shall mean the Internal Revenue Code of 1986, as
amended; "SPR Employee Benefit Plan" shall mean each (i) employee
benefit plan within the meaning of section 3(3) of ERISA
(notwithstanding that such plan may be exempt from some or all of ERISA
by virtue of its status as a "top hat" plan or other exempt plan) and
(ii) personnel policy; stock option plan or agreement;
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collective bargaining agreement; bonus plan or arrangement; incentive
award plan or arrangement; vacation policy; severance pay plan, policy,
or agreement; deferred compensation agreement or arrangement; executive
compensation or supplemental income arrangement; consulting agreement;
employment agreement; and other employee benefit plan, agreement,
arrangement, program, practice, or understanding, which is sponsored,
maintained, or contributed to by SPR for the benefit of the employees,
former employees, independent contractors, or agents of SPR or has been
so sponsored, maintained, or contributed to at any time since 1974;
"Current SPR Employee Benefit Plan" shall mean each SPR Employee
Benefit Plan, which is sponsored, maintained, or contributed to by SPR
as of the date of this Agreement or has been so sponsored, maintained,
or contributed to by SPR at any time within three years prior to the
Effective Time; and "SPR Commonly Controlled Entity" shall mean any
corporation, trade, business, or entity under common control with SPR
within the meaning of section 414(b), (c), (m), or (o) of the Code or
section 4001 of ERISA.
2.19.2. Production of Documents. Schedule 2.19.2 provides a
list of each Current SPR Employee Benefit Plan. True, correct, and
complete copies of each Current SPR Employee Benefit Plan, and related
trusts, if applicable, including all amendments thereto, have been made
available to Metamor and Merger Sub. There have also been made
available to Metamor and Merger Sub (i) the most recent report on Form
5500 and the summary plan description for each Current SPR Employee
Benefit Plan required to file such report or provide such description
and (ii) the most recent favorable determination letter from the
Internal Revenue Service with respect to each Current SPR Employee
Benefit Plan intended to be qualified within the meaning of section
401(a) of the Code.
2.19.3. Compliance with Law. With respect to the SPR Employee
Benefit Plans: (i) neither SPR nor any SPR Commonly Controlled Entity
contributes to or has an obligation to contribute to, nor has either at
any time within six years prior to the Effective Time contributed to or
had an obligation to contribute to, a multiemployer plan within the
meaning of section 3(37) of ERISA; (ii) all obligations, whether
arising by operation of law or by contract, required to be performed
with respect to the SPR Employee Benefit Plans have been substantially
performed, and there have been no material defaults, omissions, or
violations by any party with respect to the SPR Employee Benefit Plans;
(iii) all reports and disclosures relating to the Current SPR Employee
Benefit Plans required to be filed with or furnished to governmental
agencies, participants, or beneficiaries have been filed or furnished
in accordance with applicable law in a timely manner; (iv) each Current
SPR Employee Benefit Plan, which is intended to be qualified under
section 401(a) of the Code, (A) satisfies in form the requirements of
such section, except to the extent amendments are not required by law
to be made until a date after the Effective Time, (B) has received a
favorable determination letter from the Internal Revenue Service
regarding such qualified status covering all amendments to such SPR
Employee Benefit Plan, and (C) has not been operated in a way that
would adversely affect its qualified status; (v) there are no actions,
suits, or claims pending (other than routine claims for benefits) or,
to the knowledge of SPR, threatened against, or with respect to, any of
the SPR Employee Benefit Plans or their assets; (vi) all contributions
required to be made to the Current SPR Employee Benefit Plans pursuant
to their terms and the provisions of ERISA, the Code, or any other
applicable law
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have been timely made; (vii) with respect to each SPR Employee Benefit
Plan and each employee benefit plan (within the meaning of section 3(3)
of ERISA) sponsored or contributed to by any SPR Commonly Controlled
Entity, which is or has been within six years prior to the Effective
Time subject to Title IV of ERISA, (A) there has been no event or
condition that presents a material risk of plan termination, (B) no
accumulated funding deficiency, whether or not waived, within the
meaning of section 302 of ERISA or section 412 of the Code has been
incurred, (C) no reportable event within the meaning of section 4043 of
ERISA (for which the disclosure requirements of Regulation section
4043.1 et seq. promulgated by the Pension Benefit Guaranty Corporation
("PBGC") have not been waived) has occurred, (D) no notice of intent to
terminate such plan has been given under section 4041 of ERISA, (E) no
proceeding has been instituted under section 4042 of ERISA to terminate
such plan, (F) no liability to the PBGC has been incurred, which
liability has not been satisfied, (G) the assets of such plan equal or
exceed the actuarial present value of the benefit liabilities, within
the meaning of section 4041 of ERISA, under such plan, based upon
reasonable actuarial assumptions and the asset valuation principles
established by the PBGC, and (H) all contributions (including
installments) to such plan required by section 302 of ERISA and section
412 of the Code have been timely made; (viii) no act, omission, or
transaction has occurred that would result in imposition on SPR of (A)
breach of fiduciary duty liability damages under section 409 of ERISA,
(B) a civil penalty assessed pursuant to subsections (c), (i), or (l)
of section 502 of ERISA, or (C) a tax imposed pursuant to Chapter 43 of
Subtitle D of the Code; (ix) to the knowledge of SPR, there is no
matter pending (other than routine qualification determination filings)
with respect to any of the SPR Employee Benefit Plans before the
Internal Revenue Service, the Department of Labor, the PBGC, or other
governmental authority; (x) each trust funding a Current SPR Employee
Benefit Plan, which trust is intended to be exempt from federal income
taxation pursuant to section 501(c)(9) of the Code, satisfies the
requirements of such section and has received a favorable determination
letter from the Internal Revenue Service regarding such exempt status
and has not, since receipt of the most recent favorable determination
letter, been amended or operated in a way that would adversely affect
such exempt status; (xi) with respect to any Current SPR Employee
Benefit Plan that is a group health plan, all continuation of coverage
obligations set forth in section 4980B of the Code and section 601
through 609 of ERISA have been performed; and (xii) each Current SPR
Employee Benefit Plan that is a welfare plan within the meaning of
section 3(1) of ERISA may be unilaterally amended or terminated in its
entirety without liability except as to benefits vested and accrued
thereunder prior to such amendment or termination.
2.19.4. No Additional Benefits Triggered. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not, except as set forth in section 2.19.4 of
the SPR Disclosure Schedule, (i) require SPR or Metamor to make a
larger contribution to, or pay greater benefits or provide other rights
under, any Current SPR Employee Benefit Plan than it otherwise would,
whether or not some other subsequent action or event would be required
to cause such payment or provision to be triggered, or (ii) create or
give rise to any additional vested rights or service credits under any
Current SPR Employee Benefit Plan. Except as otherwise set forth on
Schedule 2.19.4, SPR is not a party to any agreement, nor has it
established any policy or practice, requiring it to make a payment or
provide any other form of compensation or benefit to any person
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performing services for SPR upon termination of such services that
would not be payable or provided in the absence of the consummation of
the transactions contemplated by this Agreement. In connection with the
consummation of the transactions contemplated by this Agreement, no
payments of money or other property, acceleration of benefits, or
provisions of other rights have or will be made hereunder, under any
agreement contemplated herein or under any Current SPR Employee Benefit
Plan that would be reasonably likely to result in imposition of the
sanctions imposed under section 280G or 4999 of the Code, whether or
not some other subsequent action or event would be required to cause
such payment, acceleration, or provision to be triggered.
2.19.5. Stock Option Plans. Except as listed on Schedule
2.19.5, no SPR Employee Benefit Plan grants or purports to grant any
option, warrant, or right entitling the holder thereof to purchase or
otherwise acquire any shares of stock of SPR, and no such option,
warrant, or right is outstanding as of the Effective Time.
2.19.6. Employees. Schedule 2.19.6 lists all individuals
performing services for SPR as of the date of this Agreement and the
annual compensation or rate of pay and paid 1998 bonus for each, with
each such individual identified as (i) salaried or hourly, (ii) exempt
or nonexempt, (iii) union or nonunion, (iv) full-time or part-time, (v)
temporary, permanent, or leased; and (vi) active or nonactive (e.g.,
leave of absence, FMLA, disability, layoff, etc.).
2.20. Investigations; Litigation. Except as required pursuant to HSR
and any applicable comparable foreign laws and regulations, (i) no investigation
or review by any governmental entity with respect to SPR or any of the
transactions contemplated by this Agreement is pending or, to SPR's knowledge,
threatened, nor has any governmental entity indicated to SPR an intention to
conduct the same, and (ii) there is no action, suit or proceeding pending or, to
SPR's knowledge, threatened against or affecting SPR at law or in equity before
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, which either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
SPR.
2.21. Product Warranty. There are no existing liabilities or, to the
knowledge of SPR, potential liabilities, arising from claims regarding the
performance or design of the products and services sold by SPR either in the
past or at present for which adequate reserves have not been established on the
most recent balance sheet in the SPR Reports that in the aggregate could
reasonably be expected to have a Material Adverse Effect on SPR.
2.22. Information for Joint Proxy Statement. All information and data
(including financial statements) concerning SPR which is or will be included in
the registration statement and joint proxy statement (collectively, the "Joint
Proxy Statement") issued in connection with the transactions contemplated by
this Agreement will be furnished by SPR for inclusion therein and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not misleading.
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2.23. Investment Company. SPR is not an "investment company," or an
"affiliated person of" or "promoter" or "principal underwriter" of an investment
company, as those terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
2.24. Pooling. Neither SPR, nor to the knowledge of SPR, any of its
affiliates has taken or agreed to take any action that would prevent the Merger
from being treated as a "pooling of interests" in accordance with generally
accepted accounting principles and the regulations of the Commission (a "Pooling
Transaction").
2.25. Section 203 of the DGCL. As of the date hereof and at all times
on or prior to the Effective Time, Section 203 of the DGCL does not and will not
apply to this Agreement, the Merger or the transactions contemplated hereby, and
the Board of Directors of SPR has unanimously approved such transactions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF METAMOR AND MERGER SUB
Metamor and Merger Sub represent and warrant subject to the exceptions
specifically described in writing in the respective sections of the disclosure
schedule delivered by Metamor to SPR and dated the date hereof (the "Metamor
Disclosure Schedule") as follows:
3.1. Organization and Standing. Each of Metamor and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, has full requisite corporate power and authority to
carry on its business as it is currently conducted, and to own and operate the
properties currently owned and operated by it and is duly qualified or licensed
to do business and is in good standing as a foreign corporation authorized to do
business in all jurisdictions in which the character of the properties owned or
the nature of the business conducted by it would make such qualification or
licensing necessary, except where the failure to be so qualified or licensed
could not reasonably be expected to have a Material Adverse Effect on Metamor.
3.2. Authorization; Approvals; No Violation.
3.2.1. Authorization of Agreement. Each of Metamor and Merger
Sub has all requisite corporate power and authority to execute and
deliver this Agreement and, subject to approval of the issuance of
shares of Metamor Common Stock in connection with the Merger in
accordance with the terms of this Agreement (the "Share Issuance") by
the holders of shares of Metamor Common Stock (as defined herein) in
accordance with the requirements of the Nasdaq National Market
("Nasdaq"), to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby. The execution and
delivery by each of Metamor and Merger Sub of this Agreement and the
performance by each of Metamor and Merger Sub of its obligations
hereunder have been duly and validly authorized by all requisite
corporate action on the part of each of Metamor and Merger Sub (other
than, with respect to the Share Issuance, the approval of the Share
Issuance by holders of Metamor Common Stock in accordance with the
requirements of
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Nasdaq). This Agreement has been duly executed and delivered by each of
Metamor and Merger Sub and (assuming due authorization, execution and
delivery hereof by the other parties hereto) this Agreement constitutes
the legal, valid and binding obligations of Metamor and Merger Sub
enforceable (subject to normal equity principles) against Metamor and
Merger Sub in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, debtor relief or
similar laws affecting the rights of creditors generally.
3.2.2. Approvals. Except for the applicable requirements, if
any, of (a) the Securities Act, (b) the Exchange Act, (c) state
securities or blue sky laws, (d) HSR, (e) the filing and recordation of
appropriate merger documents as required by the DGCL and (f) those
laws, regulations and orders of any governmental authority
noncompliance with which could not reasonably be expected to have a
Material Adverse Effect on Metamor, no filing or registration with, no
waiting period imposed by and no authorization of, any governmental
authority is required under any law, regulation or order of any
governmental authority applicable to Metamor or any of its subsidiaries
to permit Metamor to execute, deliver or perform this Agreement or to
consummate the transactions contemplated hereby.
3.2.3. No Violation. Assuming effectuation of all filings and
registrations with, termination or expiration of any applicable waiting
periods imposed by and receipt of all authorizations of governmental
authorities indicated as required in Section 3.2.2 and receipt of the
approval of the Share Issuance by the holders of the shares of Metamor
Common Stock as required by Nasdaq and except as set forth in Section
3.2.2 of the Metamor Disclosure Schedule, neither the execution and
delivery by either of Metamor or Merger Sub of this Agreement nor the
performance by either of Metamor or Merger Sub of its obligations
hereunder will (a) violate or breach the terms of or cause a default
under (i) any law, regulation or order of any governmental authority
applicable to Metamor or Merger Sub, (ii) the certificate of
incorporation or bylaws of Metamor or Merger Sub or (iii) any contract
or agreement to which Metamor or any of its subsidiaries is a party or
by which it or any of its properties or assets is bound, or (b) with
the passage of time, the giving of notice or the taking of any action
by a third person, have any of the effects set forth in clause (a) of
this Section, except in any such case for any matters described in this
Section (other than clause (ii) hereof) that could not reasonably be
expected to have Material Adverse Effect on Metamor.
3.3. Capitalization. (a) The capitalization of Metamor consists of
5,000,000 shares of preferred stock, par value $.01 per share, of which at
December 31, 1998 no shares were issued or outstanding; and 100,000,000 shares
of Metamor Common Stock, par value $.01 per share, of which at December 31,
1998, 32,408,448 shares were issued and outstanding, 4,385,614 shares were
reserved for issuance in connection with various Metamor benefit plans and no
shares of Metamor Common Stock were held in Metamor's treasury; and 3,000,000
shares of Class B Common Stock (non-voting), of which at December 31, 1998, no
shares were issued and outstanding. Other than as set forth above, Metamor has
no outstanding options, warrants or obligations of any kind to issue shares of
its capital stock.
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(b) The capitalization of Merger Sub consists of 1,000 shares of common
stock, par value $.01 per share ("Merger Sub Common Stock"), of which as of the
date hereof, 100 shares were issued and outstanding and none were reserved for
issuance. As of the date hereof, all of the outstanding shares of Merger Sub
Common Stock are owned by Metamor free and clear of any liens, claims or
encumbrances.
3.4. Reports and Financial Statements. Metamor has previously furnished
to SPR true and complete copies of (a) all of Metamor's annual reports filed
with the Commission pursuant to the Exchange Act, since December 31, 1996, (b)
Metamor's quarterly and other reports filed with the Commission since December
31, 1996, (c) all definitive proxy solicitation materials filed by Metamor with
the Commission since December 31, 1996, and (d) any of Metamor's registration
statements declared effective by the Commission since December 31, 1996. The
consolidated financial statements of Metamor and its subsidiaries included in
Metamor's most recent annual report on Form 10-K and most recent quarterly
report on Form 10-Q, and any other reports filed with the Commission by Metamor
under the Exchange Act subsequent thereto (the "Metamor Reports") were prepared
in accordance with the published regulations of the Commission and in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved and (ii) fairly present the consolidated financial
position for Metamor and its subsidiaries as of the dates thereof and the
consolidated results of their operations and changes in financial position for
the periods then ended (except with respect to interim period financial
statements, for normal year-end adjustments which are not material); the Metamor
Reports were prepared in all material respects in accordance with the
requirements of the Securities Act and the Exchange Act, as the case may be, and
the applicable rules and regulations of the Commission thereunder; and the
Metamor Reports did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Since December 31, 1996, Metamor has filed with the Commission
all reports required to be filed by Metamor under the Securities Act and the
Exchange Act and the rules and regulations of the Commission.
3.5. Liabilities. Metamor does not have any material liabilities or
obligations, either accrued, absolute, contingent, or otherwise, or have any
knowledge of any potential material liabilities or obligations, which would have
a Material Adverse Effect on Metamor, other than those (i) disclosed in the
Metamor Reports or (ii) set forth in Section 3.5 of the Metamor Disclosure
Schedule hereto.
3.6. No Undisclosed Defaults. Except as may be specified in the Metamor
Reports or in Section 3.6 of the Metamor Disclosure Schedule, Metamor is not in
default in any material obligation or covenant on its part to be performed under
any material obligation, lease, contract, order, plan or other arrangement.
3.7. Absence of Certain Changes and Events in Metamor. Except as set
forth in the Metamor Reports or in Section 3.7 of the Metamor Disclosure
Schedule, other than as a result of the transactions contemplated by this
Agreement, since September 30, 1998, there has not been:
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3.7.1. Financial Change. Any adverse change in the financial
condition, operations, assets or business of Metamor which could
reasonably be expected to have a Material Adverse Effect on Metamor;
3.7.2. Property Damage. Any damage, destruction, or loss to
the business or properties of Metamor (whether or not covered by
insurance) that could reasonably be expected to have a Material Adverse
Effect on Metamor;
3.7.3. Dividends. Any declaration, setting aside, or payment
of any dividend or other distribution in respect of the Metamor Common
Stock, or any direct or indirect redemption, purchase or any other
acquisition by Metamor of any such stock;
3.7.4. Capitalization Change. Any change in the capital stock
or in the number of shares or classes of Metamor's authorized or
outstanding capital stock as described in Section 3.3 (other than the
issuance of Metamor Common Stock upon the exercise of outstanding
options to purchase Metamor Common Stock);
3.7.5. Labor Disputes. Any labor dispute of employees of
Metamor or any of its subsidiaries (other than routine grievances); or
3.7.6. Other Material Changes. Any other event or condition
known to Metamor particularly pertaining to and adversely affecting the
operations, assets or business of Metamor which could reasonably be
expected to have a Material Adverse Effect on Metamor.
3.8. Finder's Fee. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Metamor and its
counsel, directly with SPR or its counsel, without the intervention of any other
person as the result of an act of Metamor and, so far as known to Metamor,
without the intervention of any other person in such manner as to give rise to
any valid claim against any of the parties hereto for a brokerage commission,
finder's fee, or any similar payments, other than financial advisory fees to be
paid by (i) Metamor to Goldman and (ii) SPR to Salomon in connection with the
merger contemplated by this Agreement.
3.9. Employee Benefit Plans.
3.9.1. Definitions. For purposes of this Agreement: "Metamor
Employee Benefit Plan" shall mean each (i) employee benefit plan within
the meaning of section 3(3) of ERISA (notwithstanding that such plan
may be exempt from some or all of ERISA by virtue of its status as a
"top hat" plan or other exempt plan) and (ii) personnel policy; stock
option plan or agreement; collective bargaining agreement; bonus plan
or arrangement; incentive award plan or arrangement; vacation policy;
severance pay plan, policy, or agreement; deferred compensation
agreement or arrangement; executive compensation or supplemental income
arrangement; consulting agreement; employment agreement; and other
employee benefit plan, agreement, arrangement, program, practice, or
understanding, which is sponsored, maintained, or contributed to by
Metamor for the benefit of the employees, former employees, independent
contractors, or agents of Metamor or has been so sponsored,
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maintained, or contributed to at any time since 1974; "Current Metamor
Employee Benefit Plan" shall mean each Metamor Employee Benefit Plan,
which is sponsored, maintained, or contributed to by Metamor as of the
date of this Agreement or has been so sponsored, maintained, or
contributed to at any time within three years prior to the Effective
Time; and "Metamor Commonly Controlled Entity" shall mean any
corporation, trade, business, or entity under common control with
Metamor within the meaning of section 414(b), (c), (m), or (o) of the
Code or Section 4001 of ERISA.
3.9.2. Production of Documents. True, correct, and complete
copies of each Current Metamor Employee Benefit Plan, and related
trusts, if applicable, including all amendments thereto, have been made
available to SPR. There have also been made available to SPR (i) the
most recent report on Form 5500 and the summary plan description for
each Current Metamor Employee Benefit Plan required to file such report
or provide such description and (ii) the most recent favorable
determination letter from the Internal Revenue Service with respect to
each Current Metamor Employee Benefit Plan intended to be qualified
within the meaning of section 401(a) of the Code.
3.9.3. Compliance with Law. With respect to the Metamor
Employee Benefit Plans: (i) neither Metamor nor any Metamor Commonly
Controlled Entity contributes to or has an obligation to contribute to,
nor has either at any time within six years prior to the Effective Time
contributed to or had an obligation to contribute to, a multiemployer
plan within the meaning of section 3(37) of ERISA; (ii) all
obligations, whether arising by operation of law or by contract,
required to be performed with respect to the Metamor Employee Benefit
Plans have been substantially performed, and there have been no
material defaults, omissions, or violations by any party with respect
to the Metamor Employee Benefit Plans; (iii) all reports and
disclosures relating to the Current Metamor Employee Benefit Plans
required to be filed with or furnished to governmental agencies,
participants, or beneficiaries have been filed or furnished in
accordance with applicable law in a timely manner; (iv) each Current
Metamor Employee Benefit Plan, which is intended to be qualified under
section 401(a) of the Code, (A) satisfies in form the requirements of
such section, except to the extent amendments are not required by law
to be made until a date after the Effective Time, (B) has received a
favorable determination letter from the Internal Revenue Service
regarding such qualified status covering all amendments to such Metamor
Employee Benefit Plan or is within the remedial amendment period for
obtaining such letter , and (C) has not been operated in a way that
would adversely affect its qualified status; (v) there are no actions,
suits, or claims pending (other than routine claims for benefits) or,
to the knowledge of Metamor, threatened against, or with respect to,
any of the Metamor Employee Benefit Plans or their assets; (vi) all
contributions required to be made to the Current Metamor Employee
Benefit Plans pursuant to their terms and the provisions of ERISA, the
Code, or any other applicable law have been timely made; (vii) with
respect to each Metamor Employee Benefit Plan and each employee benefit
plan (within the meaning of section 3(3) of ERISA) sponsored or
contributed to by any Metamor Commonly Controlled Entity, which is or
has been within six years prior to the Effective Time subject to Title
IV of ERISA, (A) there has been no event or condition that presents a
material risk of plan termination, (B) no accumulated funding
deficiency, whether or not waived, within the meaning of section 302 of
ERISA or section 412 of the Code has been incurred, (C) no reportable
event within the meaning of
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section 4043 of ERISA (for which the disclosure requirements of
Regulation section 4043.1 et seq. promulgated by the PBGC have not been
waived) has occurred, (D) no notice of intent to terminate such plan
has been given under section 4041 of ERISA, (E) no proceeding has been
instituted under section 4042 of ERISA to terminate such plan, (F) no
liability to the PBGC has been incurred, which liability has not been
satisfied, (G) the assets of such plan equal or exceed the actuarial
present value of the benefit liabilities, within the meaning of section
4041 of ERISA, under such plan, based upon reasonable actuarial
assumptions and the asset valuation principles established by the PBGC,
and (H) all contributions (including installments) to such plan
required by section 302 of ERISA and section 412 of the Code have been
timely made; (viii) no act, omission, or transaction has occurred that
would result in imposition on Metamor of (A) breach of fiduciary duty
liability damages under section 409 of ERISA, (B) a civil penalty
assessed pursuant to subsections (c), (i), or (l) of section 502 of
ERISA, or (C) a tax imposed pursuant to Chapter 43 of Subtitle D of the
Code; (ix) to the knowledge of Metamor, there is no matter pending
(other than routine qualification determination filings) with respect
to any of the Metamor Employee Benefit Plans before the Internal
Revenue Service, the Department of Labor, the PBGC, or other
governmental authority; (x) each trust funding a Current Metamor
Employee Benefit Plan, which trust is intended to be exempt from
federal income taxation pursuant to section 501(c)(9) of the Code,
satisfies the requirements of such section and has received a favorable
determination letter from the Internal Revenue Service regarding such
exempt status and has not, since receipt of the most recent favorable
determination letter, been amended or operated in a way that would
adversely affect such exempt status; (xi) with respect to any Current
Metamor Employee Benefit Plan that is a group health plan, all
continuation of coverage obligations set forth in section 4980B of the
Code and section 601 through 609 of ERISA have been performed; and
(xii) each Current Metamor Employee Benefit Plan that is a welfare plan
within the meaning of section 3(1) of ERISA may be unilaterally amended
or terminated in its entirety without liability except as to benefits
vested and accrued thereunder prior to such amendment or termination.
3.9.4. No Additional Benefits Triggered. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not (i) require Metamor or SPR to make a
larger contribution to, or pay greater benefits or provide other rights
under, any Current Metamor Employee Benefit Plan than it otherwise
would, whether or not some other subsequent action or event would be
required to cause such payment or provision to be triggered, or (ii)
create or give rise to any additional vested rights or service credits
under any Current Metamor Employee Benefit Plan. Except as otherwise
set forth on Schedule 3.9.4, Metamor is not a party to any agreement,
nor has it established any policy or practice, requiring it to make a
payment or provide any other form of compensation or benefit to any
person performing services for Metamor upon termination of such
services that would not be payable or provided in the absence of the
consummation of the transactions contemplated by this Agreement. In
connection with the consummation of the transactions contemplated by
this Agreement, no payments of money or other property, acceleration of
benefits, or provisions of other rights have or will be made hereunder,
under any agreement contemplated herein or under any Current Metamor
Employee Benefit Plan that would be reasonably likely to result in
imposition of the sanctions imposed under section
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280G or 4999 of the Code, whether or not some other subsequent action
or event would be required to cause such payment, acceleration, or
provision to be triggered.
3.9.5. Stock Option Plans. Except as listed on Schedule 3.9.5,
no Metamor Employee Benefit Plan grants or purports to grant any
option, warrant, or right entitling the holder thereof to purchase or
otherwise acquire any shares of stock of Metamor, and no such option,
warrant, or right is outstanding as of the Effective Time.
3.10. Investigations; Litigation. Except as required pursuant to HSR
and any applicable comparable foreign laws and regulations, (i) no investigation
or review by any governmental entity with respect to Metamor in connection with
any of the transactions contemplated by this Agreement is pending or, to the
best of Metamor's knowledge, threatened, nor has any governmental entity
indicated to Metamor an intention to conduct the same and (ii) there is no
action, suit or proceeding pending or, to the best of Metamor's knowledge,
threatened against or affecting Metamor or its subsidiaries at law or in equity,
or before any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, which either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect on Metamor.
3.11. Information for Proxy Statement. All information and data
(including financial statements) concerning Metamor which is or will be included
in the Joint Proxy Statement will be furnished by Metamor for inclusion therein
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
misleading.
3.12. Actions Preventing Treatment as a Reorganization. Neither Metamor
nor, to the knowledge of Metamor, any of its affiliates has taken or agreed to
take any action that would prevent the Merger from constituting a reorganization
qualifying under the provisions of Section 368(a) of the Code.
3.13. Pooling. Neither Metamor, nor to the knowledge of Metamor, any of
its affiliates has taken or agreed to take any action that would prevent the
Merger from being treated as a Pooling Transaction.
ARTICLE IV
OBLIGATIONS PENDING EFFECTIVE TIME
4.1. Agreements of SPR. SPR agrees that from the date hereof to the
Effective Time, it will, except with the prior written consent of Metamor:
4.1.1. Maintenance of Present Business. Other than as
contemplated by this Agreement, operate its business only in the usual,
regular, and ordinary manner so as to maintain the goodwill it now
enjoys and, to the extent consistent with such operation, use all
reasonable efforts to preserve intact its present business
organization, keep available the services of its present officers and
employees, and preserve its relationships with customers,
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suppliers, jobbers, distributors, and others having business dealings
with it, and in connection therewith it shall not substantially deviate
from its pricing practices;
4.1.2. Maintenance of Properties. At its expense, maintain all
of its property and assets in customary repair, order, and condition,
reasonable wear and use and damage by fire or unavoidable casualty
excepted;
4.1.3. Maintenance of Books and Records. Maintain its books of
accounts and records in the usual, regular, and ordinary manner, in
accordance with generally accepted accounting principles applied on a
consistent basis;
4.1.4. Compliance with Law. Duly comply in all material
respects with all laws applicable to it and to the conduct of its
business;
4.1.5. Compliance with Agreement. At its expense, take all
commercially reasonable actions as may be necessary (i) to insure that
the representations and warranties made by it herein are true and
correct at the Effective Time, (ii) to fully perform all covenants made
by it herein and (iii) to satisfy timely all other obligations imposed
upon it by this Agreement;
4.1.6. Inspection. Permit Metamor and its officers and
authorized representatives, during normal business hours upon
reasonable advance notice, to inspect its records and to consult with
its officers, employees, attorneys, and agents for the purpose of
determining the accuracy of the representations and warranties
hereinabove made and the compliance with covenants contained in this
Agreement;
4.1.7. Maintenance of Intellectual Property. Not take any
action that would, or fail to take any action the failure of which
would, cause directly or indirectly any of its Intellectual Property to
enter the public domain or that could otherwise adversely affect its
Intellectual Property; and
4.1.8. No Delay. Not take any action or enter into any
transaction which would materially affect the ability of SPR to, or
materially delay SPR's ability to, complete the transactions
contemplated by this Agreement.
4.2. Agreements of Metamor and SPR. Metamor and SPR agree to take the
following actions after the date hereof and prior to the Effective Time:
4.2.1. Xxxx-Xxxxx-Xxxxxx. Each party shall file such materials
as are required under the HSR Act with respect to the transactions
contemplated hereby and shall cooperate with the other party to the
extent necessary to assist the other party in the preparation of such
filings.
4.2.2. Joint Proxy Statement. As promptly as practicable after
the execution of this Agreement, Metamor and SPR shall cooperate in the
preparation and prompt filing of the Joint Proxy Statement with the
Commission with respect to the meetings of their respective
stockholders called for the purpose of, among other things, securing
the adoption of this
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Agreement by the stockholders of SPR in accordance with SPR's
certificate of incorporation and bylaws and the DGCL and the approval
of the Share Issuance by the stockholders of Metamor in accordance with
the rules of Nasdaq. Each of Metamor and SPR shall use all reasonable
efforts to have the Joint Proxy Statement declared effective as
promptly as practicable by the Commission.
4.2.3. Notice of Material Development. Each of Metamor and SPR
will promptly notify the other party in writing of (i) any event
occurring subsequent to the date of this Agreement which would render
any representation or warranty of such party contained in this
Agreement untrue or inaccurate in any material respect, (ii) any
Material Adverse Effect on such party and (iii) any breach by such
party of any covenant or agreement contained in this Agreement.
4.2.4. Pooling. Each party hereto shall use all reasonable
efforts to cause the Merger to be treated for financial accounting
purposes as a Pooling Transaction, and shall not take, and shall use
all reasonable efforts to prevent any affiliate of such party from
taking, any actions which could prevent the Merger from being treated
for financial accounting purposes as a Pooling Transaction.
4.2.5. Tax Treatment. Neither party shall (before or after the
Effective Time) take any action or fail to take any action which action
or failure to act would prevent, or would reasonably be likely to
prevent, the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code. Each party shall use all
reasonable efforts to obtain the opinions of counsel referred to in
Sections 5.1.9 and 5.2.8 respectively.
4.3. Additional Agreements of SPR. SPR agrees that from the date hereof
to the Effective Time, except with the prior written consent of Metamor, it
will:
4.3.1. Prohibition of Certain Employment Contracts. Not enter
into any contracts of employment or other agreements, which (i) cannot
be terminated on notice of 14 days or less without the payment of
additional compensation or (ii) provide for any increase in
compensation, including, without limitation, any modification of any
stock option agreements, outside the ordinary course of business
consistent with past practice, severance payments or benefits covering
a period beyond the termination date (other than those which Metamor
has previously approved) except as contemplated by this Agreement or as
may be required by law;
4.3.2. Prohibition of Certain Loans. Not incur any borrowings
except (i) the prepayment by customers of amounts due or to become due
for goods sold or services rendered or to be rendered in the future,
(ii) trade payables incurred in the ordinary course of business, or
(iii) other borrowings incurred in the ordinary course of business to
finance normal operations;
4.3.3. Prohibition of Certain Commitments. Not enter into
commitments of a capital expenditure nature or incur any contingent
liability which would exceed $1,000,000, in the aggregate, except (i)
as may be necessary for the maintenance of existing facilities and
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equipment in good operating condition and repair in the ordinary course
of business, or (ii) as may be required by law;
4.3.4. Disposal of Assets. Not sell, dispose of, or encumber,
any material property or assets, except in the ordinary course of
business;
4.3.5. Maintenance of Insurance. Maintain insurance (or self
insurance reserves) upon all its properties and with respect to the
conduct of its business of such kinds and in such amounts as is not
less than that presently carried by it, which insurance (or self
insurance reserves) may be added to from time to time in its
discretion;
4.3.6. SPR Acquisition Proposals.
4.3.6.1. No Solicitation. Not directly or indirectly,
or authorize or permit any of its respective agents to: (i)
solicit, initiate, encourage (including by way of furnishing
information) or take any other action to facilitate, any
inquiry or the making of any proposal which constitutes, or may
reasonably be expected to lead to, any acquisition or purchase
of a substantial amount of assets of, or any equity interest
in, SPR or any merger, consolidation, business combination,
sale of substantially all assets, sale of securities,
recapitalization, liquidation, dissolution or similar
transaction involving SPR (other than the transactions
contemplated by this Agreement) or any other material corporate
transactions the consummation of which would, or could
reasonably be expected to, impede, interfere with, prevent or
materially delay the Merger (collectively, "SPR Transaction
Proposals") or agree to or endorse any SPR Transaction Proposal
or (ii) propose, enter into or participate in any discussions
or negotiations regarding any of the foregoing, or furnish to
another person any information with respect to its business,
properties or assets or any of the foregoing, or otherwise
cooperate in any way with, or assist or participate in,
facilitate or encourage, an effort or attempt by any other
person to do or seek any of the foregoing, provided, however,
that the foregoing clauses (i) and (ii) shall not prohibit SPR
from (A) furnishing information pursuant to an appropriate
confidentiality letter concerning SPR and its businesses,
properties or assets to a third party who has made a Superior
SPR Transaction Proposal (as defined below) or (B) engaging in
discussions or negotiations with a third party who has made a
Superior SPR Transaction Proposal but in each case referred to
in the foregoing clauses (A) and (B) only after the board of
directors of SPR concludes in good faith following advice of
its outside counsel (which shall be such counsel as reasonably
selected by the board of directors of SPR), represented by a
written opinion, that such action is reasonably necessary in
order for the board of directors of SPR to comply with its
fiduciary obligations to SPR's stockholders under applicable
law. If the board of directors of SPR receives a SPR
Transaction Proposal, then SPR shall immediately inform Metamor
of the terms and conditions of such proposal and the identity
of the person making it and shall keep Metamor fully informed
of the status and details of any such SPR Transaction Proposal
and of all steps it is taking in response to such SPR
Transaction Proposal; provided, that nothing contained in this
Section 4.3.6.1 shall prohibit SPR or its board of directors
from making such
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disclosure to SPR's stockholders or taking any action which,
in the good faith judgment of SPR's board of directors based
on a written opinion of its outside counsel, is required under
applicable law, including Rules 14d-9 and 14e-2 promulgated
under the Exchange Act. For purposes of this Agreement, the
term "Superior SPR Transaction Proposal" shall mean a bona
fide SPR Transaction Proposal that the board of directors of
SPR determines in good faith after consultation with (and
based in part on the advice of) its independent financial
advisors to be more favorable to SPR and SPR's stockholders
than the Merger, is reasonably capable of being financed and
is not subject to any material contingencies relating to
financing.
4.3.6.2. Acceptance of Superior SPR Transaction
Proposals. If (i) this Agreement is terminated by SPR or
Metamor pursuant to Section 6.1.5 hereof, or (ii) SPR enters
into an agreement which provides for Another SPR Transaction
(as defined below) or Another SPR Transaction is consummated
(in each case with any third party which after the date of
this Agreement and before termination of this Agreement has
communicated to it a SPR Transaction Proposal), in either case
within twelve months after the date of termination of this
Agreement, then, in any such event unless this Agreement has
been terminated solely due to SPR's termination pursuant to
Section 6.1.1, Section 6.1.4, Section 6.1.6, Section 6.1.7,
Section 6.1.8, Section 6.1.9 or Section 6.1.10(ii), SPR shall
pay to Metamor simultaneously with termination by SPR in the
case of the occurrence of any of the events specified in
clause (i) above, and immediately upon the first to occur of
the entering into an agreement providing for, or the
consummation of, Another SPR Transaction in the case of clause
(ii) above (by wire transfer of immediately available funds to
an account designated by Metamor for such purpose), a fee (the
"Break-Up Fee") in an amount equal to $10,300,000. For
purposes of this Section 4.3.6.2, the term "Another SPR
Transaction" shall mean any transaction pursuant to which (i)
any person, entity or group (within the meaning of Section
13(d)(3) of the Exchange Act) (each, a "Third Party") acquires
50% or more of the outstanding SPR Common Stock, (ii) a Third
Party acquires 25% or more of the total assets of SPR taken as
a whole, (iii) a Third Party merges, consolidates or combines
in any other way with SPR other than in a transaction in which
holders of SPR Common Stock continue to own at least 75% of
the equity of the surviving corporation, or (iv) SPR
distributes or transfers to its stockholders, by dividend or
otherwise, assets constituting 25% or more of the market value
or earning power of SPR on a consolidated basis (it being
understood that stock of subsidiaries constitute assets of SPR
for purposes of this Section 4.3.6.2).
4.3.7. No Amendment to Certificate of Incorporation, etc.
Without the consent of Metamor, not amend its certificate of
incorporation or bylaws or other organizational documents or merge or
consolidate with or into any other corporation or change in any manner
the rights of its capital stock or the character of its business;
4.3.8. No Issuance, Sale, or Purchase of Securities. Without
the consent of Metamor, not issue or sell, or issue options or rights
to subscribe for, or enter into any
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contract or commitment to issue or sell (upon conversion or otherwise),
any shares of its capital stock or subdivide or in any way reclassify
any shares of its capital stock, or acquire, or agree to acquire, any
shares of its capital stock; provided, that nothing in this Section
4.3.8 shall restrict or prohibit the issuance by SPR of shares of SPR
Common Stock upon exercise of options previously granted under existing
benefit plans;
4.3.9. Prohibition on Dividends. Without the consent of
Metamor, not declare or pay any dividend on shares of its capital stock
or make any other distribution of assets to the holders thereof;
4.3.10. Supplemental Financial Statements. Deliver to Metamor,
within 90 days after the end of the fiscal year ended December 31, 1998
the audited consolidated financial statements of SPR included in its
report on Form 10-K. Deliver to Metamor, within 45 days after the end
of each fiscal quarter of SPR beginning December 31, 1998 and through
the Effective Time, unaudited balance sheets and related unaudited
statements of income, retained earnings and cash flows as of the end of
each fiscal quarter of SPR, and as of the corresponding fiscal quarter
of the previous fiscal year. SPR hereby represents and warrants that
such unaudited financial statements shall (i) be complete in all
material respects except for the omission of notes and schedules
contained in audited financial statements, (ii) present fairly the
financial condition of SPR as at the dates indicated and the results of
operations for the respective periods indicated (except for normal
year-end adjustments which are not material), (iii) shall have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except as noted therein and (iv) shall
contain all adjustments which SPR considers necessary for a fair
presentation of its results for each respective fiscal period;
4.3.11. Notice of Material Developments. Promptly furnish to
Metamor copies of all communications from SPR to its stockholders and
all SPR Reports. SPR shall give prompt notice to Metamor of (i) the
occurrence or non-occurrence of any event the occurrence or
non-occurrence of which would cause any SPR representation or warranty
contained in this Agreement to be untrue or inaccurate at or prior to
the Effective Time and (ii) any material failure of SPR to comply with
or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided, however, that the delivery of any
notice pursuant to this Section 4.3.11 shall not limit or otherwise
affect the remedies available hereunder to Metamor.
4.3.12. SPR Stockholders' Meeting. Call and hold a meeting of
stockholders of SPR within 45 days after the Commission has indicated
that it has no further comments on the Joint Proxy Statement for the
purpose of considering and acting upon a proposal to adopt this
Agreement. The board of directors of SPR shall recommend to the
stockholders of SPR the adoption of this Agreement by the stockholders
of SPR and shall not change such recommendation unless the board of
directors of SPR concludes in good faith following advice of its
outside counsel (which shall be such counsel as reasonably selected by
the board of directors of SPR), represented by a written opinion, that
a change of recommendation is reasonably necessary in order for the
board of directors of SPR to comply with its fiduciary obligations to
SPR's stockholders under applicable law.
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4.3.13. Union Contracts and SPR Plans. Except as required by
law, without the written consent of Metamor, not directly or indirectly
(i) enter into or modify any collective bargaining agreement with any
labor union or other representative of employees, (ii) increase the
compensation or benefits of any employee of SPR, (iii) amend or
terminate any SPR Plan, or (iv) enter into or adopt any new employee
benefit plan, policy or arrangement.
4.4. Additional Agreements of Metamor. Metamor agrees that from the
date hereof to the Effective Time, it will:
4.4.1. Maintenance of Present Business. Other than as
contemplated by this Agreement, operate its business in the usual,
regular, and ordinary manner;
4.4.2. No Delay. Not take any action or enter into any
transaction which would materially affect the ability of Metamor to, or
materially delay Metamor's ability to, complete the transactions
contemplated by this Agreement;
4.4.3. No Amendment to Certificate of Incorporation, etc.
Except as otherwise provided herein, not amend its certificate of
incorporation or bylaws or other organizational documents or merge into
any other corporation or change in any manner the rights of its Common
Stock;
4.4.4. No Issuance, Sale, or Purchase of Securities. Not issue
or sell, or issue options or any shares of its capital stock or
subdivide or in any way reclassify any shares of its capital stock, or
acquire, or agree to acquire, any shares of its capital stock or rights
to subscribe for, or enter into any contract or commitment to issue or
sell (upon conversion or otherwise) (other than (i) options previously
authorized by the compensation committee of Metamor's board of
directors or (ii) options granted pursuant to existing Metamor employee
benefit plans to new personnel upon commencement of employment);
provided, that nothing in this Section 4.4.4 shall restrict or prohibit
the issuance by Metamor of shares of Metamor Common Stock upon exercise
of options previously granted under existing employee benefit plans,
the issuance of shares of Metamor Common Stock upon exercise of
outstanding warrants, or the issuance of shares of Metamor Common Stock
in the acquisition of other businesses in "non-dilutive (for financial
reporting purposes) transactions;
4.4.5. Prohibition on Dividends. Not declare or pay any
dividend on shares of its capital stock or make any other distribution
of assets to the holders thereof;
4.4.6. Issuance of Metamor Common Stock. Take all action
reasonably necessary to register the Share Issuance under the
Securities Act. Metamor also shall take any action reasonably required
to be taken under state blue sky or securities laws in connection with
the issuance of the Metamor Common Stock pursuant to the Merger;
4.4.7. Listing of Metamor Stock. Take such steps as are
required to accomplish, as of the Effective Time, the Notification of
Additional Listing of the shares of Metamor Common Stock to be issued
pursuant to this Agreement on the Nasdaq;
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4.4.8. Notice of Material Developments. Promptly furnish to
SPR copies of all communications from Metamor to its stockholders and
all Metamor Reports. Metamor shall give prompt notice to SPR of (i) the
occurrence or non-occurrence of any event the occurrence or
non-occurrence of which would cause any Metamor representation or
warranty contained in this Agreement to be untrue or inaccurate at or
prior to the Effective Time and (ii) any material failure of Metamor to
comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 4.4.8 shall not limit
or otherwise affect the remedies available hereunder to SPR;
4.4.9. Compliance with Agreement. At its expense, take all
commercially reasonable actions as may be necessary (i) to insure that
the representations and warranties made by it herein are true and
correct at the Effective Time, (ii) to fully perform all covenants made
by it herein and (iii) to satisfy timely all other obligations imposed
upon it by this Agreement; and
4.4.10. Metamor Stockholders' Meeting. Call and hold a meeting
of stockholders of Metamor within 45 days after the Commission has
indicated that it has no further comments on the Joint Proxy Statement
for the purpose of considering and acting upon a proposal to approve
the Share Issuance. The board of directors of Metamor shall recommend
to the stockholders of Metamor the approval of the Share Issuance and
shall not change such recommendation unless the board of directors of
Metamor concludes in good faith following advice of its outside counsel
(which shall be such counsel as reasonably selected by the board of
directors of Metamor), represented by a written opinion, that a change
of recommendation is reasonably necessary in order for the board of
directors of Metamor to comply with its fiduciary obligations to
Metamor's stockholders under applicable law.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS
5.1. Conditions Precedent to Obligations of SPR. The obligations of SPR
to consummate and effect the Merger shall be subject to the satisfaction of the
following conditions, or to the waiver thereof by SPR in the manner contemplated
by Section 6.4 before the Effective Time:
5.1.1. Representations and Warranties of Metamor True at
Effective Time. The representations and warranties of Metamor and
Merger Sub herein contained shall be, in all respects, true as of and
at the Effective Time with the same effect as though made at such date,
except as affected by transactions permitted or contemplated by this
Agreement and except for those representations and warranties that
address matters only as of a particular date (which shall remain true
and correct as of such particular date), provided that any inaccuracies
in such representations and warranties will be disregarded if the
circumstances giving rise to all such inaccuracies (considered
collectively) do not constitute, and are not reasonably expected to
result in, a Material Adverse Effect on Metamor (it being understood
that any materiality qualifications contained in such representations
and warranties shall be disregarded for this purpose); Metamor shall
have performed and complied, in all material
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respects, with all covenants required by this Agreement to be performed
or complied with by Metamor before the Effective Time; and Metamor
shall have delivered to SPR a certificate, dated the Effective Time and
signed by its chairman of the board or chief executive officer and by
its chief financial or accounting officer to both such effects.
5.1.2. No Material Litigation. No suit, action, or other
proceeding shall be pending, or to Metamor's knowledge, threatened,
before any court or governmental agency which could reasonably be
expected to have a Material Adverse Effect on Metamor.
5.1.3. Opinion of Metamor Counsel. SPR shall have received a
favorable opinion, dated as of the Effective Time, from Xxxxxx & Xxxxxx
L.L.P., counsel to Metamor, to the effect that (i) Metamor is validly
existing as a corporation in corporate good standing under the laws of
the State of Delaware; (ii) all corporate proceedings required to be
taken by or on the part of Metamor to authorize the execution of this
Agreement and the implementation of the Merger have been taken; (iii)
the shares of Metamor Common Stock which are to be delivered in
accordance with this Agreement will, when issued, be validly issued,
fully paid and nonassessable outstanding securities of Metamor; (iv)
this Agreement has been duly executed and delivered by Metamor; (v) the
Registration Statement on Form S-4 (which contains the Joint Proxy
Statement relating to the Merger) has become effective and no stop
order has been issued by the Commission; (vi) this Agreement
constitutes the legal, valid and binding obligation of Metamor,
enforceable in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and public policy; and (vii) except
as specified by such counsel (such exceptions to be acceptable to SPR)
such counsel does not know of any material litigation, proceedings, or
governmental investigation, pending or threatened against or relating
to Metamor, any of its subsidiaries, or their respective properties or
businesses in which it is sought to restrain, prohibit or otherwise
affect the consummation of the transactions contemplated by this
Agreement. Such opinion also shall cover such other matters incident to
the transactions herein contemplated as SPR and its counsel may
reasonably request. In rendering such opinion, such counsel may rely
upon (i) certificates of public officials and of officers of Metamor as
to matters of fact and (ii) the opinion or opinions of other counsel,
which opinions shall be reasonably satisfactory to SPR, as to matters
other than federal or Texas law.
5.1.4. SPR Stockholder Approval. At the meeting of
stockholders of SPR to be held before the Effective Time, this
Agreement shall have been adopted by the requisite vote of stockholders
of SPR Common Stock under SPR's certificate of incorporation and bylaws
and the DGCL.
5.1.5. Xxxx-Xxxxx-Xxxxxx, etc. All waiting periods required by
HSR shall have expired with respect to the transactions contemplated by
this Agreement, or early termination with respect thereto shall have
been obtained without the imposition of any governmental request or
order requiring the sale or disposition or holding separate (through a
trust or otherwise) of particular assets or businesses of Metamor, its
affiliates or any component of SPR or other actions as a precondition
to the expiration of any waiting period or the receipt
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of any necessary governmental approval or consent. In addition, any
approvals required under any state or foreign laws comparable to HSR
shall have been obtained.
5.1.6. Registration; Listing of Metamor Common Stock. On or
prior to the Effective Time (i) the Joint Proxy Statement shall have
become effective under the Securities Act, and (ii) the shares of
Metamor Common Stock issuable at the Effective Time of the Merger shall
have become eligible for trading on the Nasdaq.
5.1.7. Stock Options. Metamor shall have made effective
provision for the assumption or substitution at the Effective Time of
all stock options outstanding under plans maintained by SPR.
5.1.8. Tax Opinion. Wildman, Harrold, Xxxxx & Xxxxx shall have
delivered to SPR its written opinion (which may be based upon such
representations, warranties and certificates it deems reasonable and
appropriate under the circumstances) as of the date that the Joint
Proxy Statement is first mailed to SPR stockholders substantially to
the effect that (x) the Merger will constitute a reorganization within
the meaning of Section 368(a) of the Code, (y) Metamor, Merger Sub and
SPR will each be a party to that reorganization within the meaning of
Section 368(b) of the Code, and (z) no gain or loss for U.S. federal
income tax purposes will be recognized by the holders of SPR Common
Stock upon receipt of shares of Metamor Common Stock in the Merger,
except with respect to any cash received in lieu of a fractional share
interest in Metamor Common Stock, and such opinion shall not have been
withdrawn or modified in any material respect.
5.1.9. Listing of Shares. The shares of Metamor Common Stock
to be issued in the Merger shall have been listed, subject to official
notice of issuance, on the Nasdaq.
5.2. Conditions Precedent to Obligations of Metamor. The obligations of
Metamor to consummate and effect the Merger shall be subject to the satisfaction
of the following conditions, or to the waiver thereof by Metamor in the manner
contemplated by Section 6.4 before the Effective Time:
5.2.1. Representations and Warranties of SPR True at Effective
Time. The representations and warranties of SPR herein contained shall
be, in all respects, true as of and at the Effective Time with the same
effect as though made at such date, except as affected by transactions
permitted or contemplated by this Agreement and except for those
representations and warranties that address matters only as of a
particular date (which shall remain true and correct as of such
particular date), provided that any inaccuracies in such
representations and warranties will be disregarded if the circumstances
giving rise to all such inaccuracies (considered collectively) do not
constitute, and are not reasonably expected to result in, a Material
Adverse Effect on SPR (it being understood that any materiality
qualifications contained in such representations and warranties shall
be disregarded for this purpose); SPR shall have performed and
complied, in all material respects, with all covenants required by this
Agreement to be performed or complied with by SPR before the Effective
Time; and SPR shall have delivered to Metamor a certificate, dated the
Effective
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Time and signed by its chairman of the board or chief executive officer
and by its chief financial or accounting officer to both such effects.
5.2.2. No Material Litigation. No suit, action, or other
proceeding shall be pending, or to SPR's knowledge, threatened, before
any court or governmental agency which could reasonably be expected to
have a Material Adverse Effect on SPR.
5.2.3. Opinion of SPR's Counsel. Metamor shall have received a
favorable opinion, dated as of the Effective Time, from Wildman,
Harrold, Xxxxx & Xxxxx, counsel to SPR, to the effect that (i) SPR is
validly existing as a corporation in corporate good standing under the
laws of the State of Delaware; (ii) all outstanding shares of the SPR
Common Stock have been validly issued and are fully paid and
nonassessable; (iii) all corporate proceedings required to be taken by
or on the part of SPR to authorize the execution of this Agreement and
the implementation of the Merger have been taken; (iv) this Agreement
has been duly executed and delivered by SPR; (v) this Agreement
constitutes the legal, valid and binding obligation of SPR, each
enforceable in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and public policy; and (vi) except
as specified by such counsel (such exceptions to be acceptable to
Metamor) such counsel does not know of any material litigation,
proceedings or governmental investigation, pending or threatened
against or relating to SPR, any of its subsidiaries or their respective
properties or businesses in which it is sought to restrain, prohibit or
otherwise affect the consummation of the transactions contemplated by
this Agreement. Such opinion shall also cover such other matters
incident to the transactions herein contemplated as Metamor and its
counsel may reasonably request. In rendering such opinion, such counsel
may rely upon (i) certificates of public officials and of officers of
SPR as to matters of fact and (ii) on the opinion or opinions of other
counsel, which opinions shall be reasonably satisfactory to Metamor, as
to matters other than federal or Illinois law.
5.2.4. Metamor Stockholder Approval. At the meeting of
stockholders of Metamor to be held before the Effective Time, the Share
Issuance shall be approved by the requisite holders of Metamor Common
Stock in accordance with the rules of Nasdaq.
5.2.5. Xxxx-Xxxxx-Xxxxxx, etc. All waiting periods required by
HSR shall have expired with respect to the transactions contemplated by
this Agreement, or early termination with respect thereto shall have
been obtained without the imposition of any governmental request or
order requiring the sale or disposition or holding separate (through a
trust or otherwise) of particular assets or businesses of Metamor, its
affiliates or any component of SPR or other actions as a precondition
to the expiration of any waiting period or the receipt of any necessary
governmental approval or consent. In addition, any approvals required
under any state or foreign laws comparable to HSR shall have been
obtained.
5.2.6. Consent of Certain Parties in Privity with SPR. The
holders of any material indebtedness of SPR, the lessors of any
material property leased by SPR, and the other parties to any other
material agreements to which SPR is a party, whose consent to the
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Merger is required as set forth in the SPR Disclosure Schedule, shall
have consented to the Merger.
5.2.7. Tax Opinion. Xxxxxx & Xxxxxx L.L.P. shall have
delivered to Metamor its written opinion (which may be based upon such
representations, warranties and certificates it deems reasonable and
appropriate under the circumstances) as of the date that the Joint
Proxy Statement is first mailed to SPR stockholders substantially to
the effect that (x) the Merger will constitute a reorganization within
the meaning of Section 368(a) of the Code, (y) Metamor, Merger Sub and
SPR will each be a party to that reorganization within the meaning of
Section 368(b) of the Code, and (z) Metamor, Merger Sub and SPR will
not recognize any gain or loss for U.S. federal income tax purposes as
a result of the Merger, and such opinion shall not have been withdrawn
or modified in any material respect.
ARTICLE VI
TERMINATION AND ABANDONMENT
6.1. Termination. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated and the Merger abandoned at
any time (whether before or after the approval of this Agreement by the
stockholders of SPR and Metamor) before the Effective Time:
6.1.1. By Mutual Consent. By mutual written consent of Metamor
and SPR.
6.1.2. By Metamor Because of Conditions Precedent. By Metamor,
if there has been a breach by SPR of its representations, warranties,
covenants, or agreements set forth in this Agreement if, as a result of
such breach, the conditions set forth in Section 5.2.1 would not be
satisfied, and SPR fails to cure such breach within 15 business days
after written notice thereof from Metamor (except that no cure period
shall be provided for any breach by SPR which by its nature cannot be
cured).
6.1.3. By Metamor Because of Material Adverse Change. By
Metamor, if there has been since September 30, 1998, a Material Adverse
Change with respect to SPR which condition or event shall not have been
ameliorated such that it no longer constitutes a Material Adverse
Change within ten (10) business days following receipt by SPR of notice
from Metamor (except that no cure period shall be provided for any
Material Adverse Change which by its nature cannot be cured).
6.1.4. By SPR Because of Conditions Precedent. By SPR, if
there has been a breach by Metamor of any of its representations,
warranties, covenants or agreements set forth in this Agreement if, as
a result of such breach, the conditions set forth in Section 5.1.1
would not be satisfied, and Metamor fails to cure such breach within 15
business days after written notice thereof from SPR (except that no
cure period shall be provided for any breach by Metamor which by its
nature cannot be cured).
6.1.5. By SPR or Metamor Due to a Board Action. By SPR or
Metamor if, before the Effective Time, SPR's board of directors shall
have withdrawn, withheld or modified in
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a manner adverse to Metamor its approval of this Agreement or the
Merger solely to the extent permitted by the terms, conditions and
procedures set forth in Section 4.3.12.
6.1.6. By SPR Because of Material Adverse Change. By SPR, if
there has been since September 30, 1998, a Material Adverse Change with
respect to Metamor which condition or event shall not have been
ameliorated such that it no longer constitutes a Material Adverse
Change within ten (10) business days following receipt by Metamor of
notice from SPR (except that no cure period shall be provided for any
Material Adverse Change which by its nature cannot be cured).
6.1.7. By Metamor or SPR Because of Legal Proceedings. By
Metamor or SPR if (i) a statute, rule, regulation or executive order
shall have been enacted, entered or promulgated prohibiting the
consummation of the Merger substantially on the terms contemplated
hereby or (ii) an order, decree, ruling or injunction shall have been
entered permanently restraining, enjoining or otherwise prohibiting the
consummation of the Merger substantially on the terms contemplated
hereby and such order, decree, ruling or injunction shall have become
final and non-appealable; provided, that the party seeking to terminate
this Agreement pursuant to this Section 6.1.7 shall have used its
reasonable best efforts to remove such injunction order, decree, ruling
or injunction.
6.1.8. By Metamor or SPR if Merger not Effective by August 31,
1999. By either Metamor or SPR, if all conditions to consummation of
the Merger shall not have been satisfied or waived on or before August
31, 1999, other than as a result of a breach of this Agreement by the
terminating party.
6.1.9. By Metamor or SPR if Merger Cannot be Accounted for as
a Pooling. By Metamor or SPR if the Merger cannot for financial
reporting purposes be accounted for as a "pooling of interests";
provided, however, this provision shall not be available to a party
which has taken any action or failed to take any action, that either
alone or in combination with actions previously taken disqualifies the
Merger from such accounting treatment.
6.1.10. By Metamor or SPR if Merger Not Approved by
Stockholders. By either Metamor or SPR if (i) a meeting of the
stockholders of SPR (including any adjournments thereof) shall have
been held and completed and SPR's stockholders shall have taken a final
vote on a proposal to adopt this Agreement and this Agreement was not
adopted by the requisite vote of holders of SPR Common Stock under
SPR's certificate of incorporation and bylaws and the DGCL or (ii) a
meeting of the stockholders of Metamor (including any adjournments
thereof) shall have been held and completed and Metamor's stockholders
shall have taken a final vote on a proposal to approve the Share
Issuance and the Share Issuance was not approved by the requisite
holders of Metamor Common Stock under the rules of Nasdaq.
6.2. Termination by Board of Directors. An election of Metamor to
terminate this Agreement and abandon the Merger as provided in Section 6.1 shall
be exercised on behalf of Metamor by its board of directors. An election of SPR
to terminate this Agreement and abandon the Merger as provided in Section 6.1
shall be exercised on behalf of SPR by its board of directors.
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6.3. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to and in accordance with the provisions
of Section 6.1 hereof, this Agreement shall become void and have no effect,
without any liability on the part of any party hereto (or its stockholders or
controlling persons or directors or officers), except (i) the provisions of
Section 4.3.6.2 shall survive such termination and abandonment and (ii) neither
party shall be released or relieved from any liability arising from any breach
by such party of any of its representations, warranties, covenants or agreements
as set forth in this Agreement.
6.4. Waiver of Conditions. Subject to the requirements of any
applicable law, any of the terms or conditions of this Agreement may be waived
at any time by the party which is entitled to the benefit thereof, by action
taken by its board of directors.
6.5. Expenses on Termination. If the Merger is abandoned pursuant to
and in accordance with the provisions of Section 6.1 hereof, all expenses will
be paid by the party incurring them; provided, however, that in the event this
Agreement is terminated solely due to Metamor's termination of this Agreement
pursuant to Section 6.1.2 or solely due to Metamor's or SPR's termination of
this Agreement pursuant to Section 6.1.5, SPR shall assume and pay, or reimburse
Metamor for, all reasonable fees and expenses incurred by Metamor or Merger Sub
(including the fees and expenses of its counsel, accountants and financial
advisors) through the date of termination and which are specifically related to
the Merger, this Agreement and the matters contemplated by this Agreement, but
in no event later than two business days after the submission of a request for
payment of the same; and provided, further, that in the event this Agreement is
terminated by SPR pursuant to Section 6.1.4, Metamor shall assume and pay, or
reimburse SPR for, all reasonable fees and expenses incurred by SPR (including
the fees and expenses of its counsel, accountants and financial advisors)
through the date of termination and which are specifically related to the
Merger, this Agreement and the matters contemplated by this Agreement, but in no
event later than two business days after the submission of a request for payment
of the same. Any party's right to expense reimbursement or payment under this
Section 6.5 shall be in addition to any other remedies such party may have under
this Agreement at law or in equity.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1. Indemnification of Directors and Officers. (a) Metamor shall
indemnify and hold harmless each present and former director and officer of SPR,
determined as of the Effective Time, against any claims, losses, liabilities,
damages, judgments, fines, fees, costs or expenses, including without limitation
attorneys' fees and disbursements incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to matters existing or occurring at
or prior to the Effective Time (including, without limitation, the Merger, the
preparation, filing and mailing of the Proxy Statement and the other
transactions and actions contemplated by this Agreement), whether asserted or
claimed prior to, at or after the Effective Time, to the fullest extent that SPR
would have been permitted, under applicable law, indemnification agreements
existing on the date hereof, the certificate of incorporation or bylaws of SPR
in effect on the date hereof, to indemnify such person (and Metamor shall also
advance expenses as incurred to the fullest extent permitted under applicable
law provided
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the person to whom expenses are advanced provides an undertaking to repay such
advances if it is ultimately determined that such person is not entitled to
indemnification).
(b) For a period of six (6) years after the Effective Time, Metamor
shall maintain (to the extent available in the market) in effect a directors'
and officers' liability insurance policy covering those persons who are
currently covered by SPR's directors' and officers' liability insurance policy
(a copy of which has been heretofore delivered to Metamor) with coverage in
amount and scope at least as favorable as SPR's existing coverage (which
coverage may be an endorsement extending the period in which claims may be made
under such existing policy); provided that in no event shall Metamor be required
to expend per year for such coverage more than an aggregate of 200% of the
current annual premium expended by SPR to provide such coverage and provided,
further, that if the annual premiums of such insurance coverage exceed such
amount, Metamor shall be obligated to obtain a policy with the best coverage
available, in the reasonable judgment of the board of directors of Metamor, for
a cost not exceeding such amount.
(c) For a period of six (6) years after the Effective Time, Metamor
shall maintain (to the extent available in the market) in effect an errors and
omissions liability insurance policy covering those actions that are currently
covered by SPR's errors and omissions liability insurance policy (a copy of
which has been heretofore delivered to Metamor) with coverage in amount and
scope at least as favorable as SPR's existing coverage (which coverage may be an
endorsement extending the period in which claims may be made under such existing
policy); provided that in no event shall Metamor be required to expend per year
for such coverage more than an aggregate of 200% of the current annual premium
expended by SPR to provide such coverage; and provided, further, that if the
annual premiums of such insurance coverage exceed such amount, Metamor shall be
obligated to obtain a policy with the best coverage available, in the reasonable
judgment of the board of directors of Metamor, for a cost not exceeding such
amount.
(d) The provisions of this Section 7.1 are intended to be for the
benefit of, and shall be enforceable by, each indemnified party and his or her
heirs and representatives, and nothing herein shall affect any indemnification
rights that any indemnified party and his or her heirs and representatives may
have under the bylaws of SPR or any of its subsidiaries, any contract or
applicable law.
7.2. Affiliate Agreements.
7.2.1. SPR Affiliates. To insure that the Merger will be
treated as a "pooling of interests" and to insure compliance with Rule
145 of the rules and regulations promulgated by the Commission and the
Securities Act, each of SPR's directors, executive officers and
beneficial owners of 10% or more of SPR's Common Stock identified as
"affiliates" has concurrently signed and delivered to Metamor the SPR
affiliate agreements in the form attached as Exhibit C.
7.2.2. Metamor Affiliates. To insure that the Merger will be
treated as a "pooling of interests," each of Metamor's directors,
executive officers and beneficial owners of 10% or more of Metamor's
Common Stock identified as "affiliates" has concurrently signed and
delivered to Metamor the Metamor affiliate agreements in the form
attached as Exhibit D.
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7.3. Employee Benefit Plans of SPR. Metamor shall take all actions
necessary or appropriate to permit the employees of SPR and its subsidiaries
("SPR Employees") to continue to participate from and after the Closing Date in
the SPR Plans maintained by SPR and its subsidiaries immediately prior to the
Closing Date. Notwithstanding the foregoing, Metamor may permit or cause any
such SPR Plan to be terminated or discontinued on or after the Closing Date,
provided that Metamor shall take all actions necessary or appropriate to permit
the SPR Employees participating in such terminated or discontinued SPR Plan to
immediately thereafter participate in the comparable Metamor Plan maintained by
Metamor or any of its subsidiaries for their similarly situated employees to the
extent permitted by, and under the terms of each such Metamor Plan. If the SPR
Plan that is terminated or discontinued by Metamor is a group health plan, then
Metamor shall permit each SPR Employee participating in such group health plan
to be covered under a Metamor Plan that (i) provides medical benefits to each
such SPR Employee effective immediately upon the cessation of coverage of such
individuals under such group health plan, (ii) credits such SPR Employee, for
the calendar year during which such coverage under such Metamor Plan begins,
with any deductibles and copayments already incurred during such year under such
group health plan, and (iii) waives any preexisting condition restrictions to
the extent necessary to provide immediate coverage but only to the extent each
such SPR Employee satisfies such restrictions under such SPR Plan. Metamor and
the Metamor Plans shall recognize each SPR Employee's years of service and level
of seniority with SPR and its subsidiaries for purposes of terms of employment
and eligibility, vesting and benefit determination under the Metamor Plans
(other than benefit accruals under any defined benefit pension plan).
7.4. SPR Employee Stock Purchase Plan. As of the Effective Time, the
ESPP and each other stock option plan intended to be qualified under section 423
of the Code shall be terminated. The rights of participants in the ESPP with
respect to any offering period underway under the ESPP immediately prior to the
Effective Time shall be determined by treating the last business day prior to
the Effective Time as the last day of such offering period and by making such
other pro-rata adjustments as may be necessary to reflect the reduced offering
period but otherwise treating such offering period as a fully effective and
completed offering period for all purposes of such Plan. Prior to the Effective
Time, SPR may take all actions (including, if appropriate, amending the terms of
the ESPP) that are necessary to give effect to the transactions contemplated by
this Section 7.4.
ARTICLE VIII
MISCELLANEOUS
8.1. Entirety. This Agreement and the attachments and Schedules thereto
embody the entire agreement among the parties with respect to the subject matter
hereof, and all prior agreements among the parties with respect thereto are
hereby superseded in their entirety.
8.2. Counterparts. Any number of counterparts of this Agreement may be
executed and each such counterpart shall be deemed to be an original instrument,
but all such counterparts together shall constitute but one instrument.
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8.3. Notices and Waivers. Any notice or waiver to be given to any party
hereto shall be in writing and shall be delivered by overnight courier, sent by
facsimile transmission or first class registered or certified mail, postage
prepaid.
IF TO METAMOR
Addressed to: With a copy to:
Metamor Worldwide, Inc. Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxx Xxxxxxx, Xxxxx 0000 0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000 2300 First City Tower
Attention: Xxxxx X. Xxxxxxx Xxxxxxx, Xxxxx 00000
Senior Vice President Attention: Xxxxxx X. Xxxxxxx
Facsimile: 713-627-1059 Facsimile: 000-000-0000
IF TO SPR
Addressed to: With a copy to:
SPR Inc. Wildman, Harrold, Xxxxx & Xxxxx
0000 Xxxxxx Xxxx 000 Xxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx 0000
Xxx Xxxxx, Xxxxxxxx 60521 Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx, Chairman Attention: Xxxxxx Xxxxxxxx
and Chief Executive Officer Facsimile: 312-201-2555
Facsimile: 000-000-0000
Any communication so addressed and mailed by first-class registered or
certified mail, postage prepaid, shall be deemed to be received on the fifth
business day after so mailed, and if delivered by overnight courier or facsimile
to such address, upon delivery during normal business hours on any business day.
8.4. Termination of Representations, Warranties, etc. The respective
representations and warranties, covenants and agreements contained in this
Agreement shall expire with, and be terminated and extinguished by, the Merger
at the time of the consummation thereof on the Effective Time, provided,
however, that this Section 8.4 shall not limit or otherwise effect any covenant
or agreement of the parties hereto which by its terms contemplates performance
after the Effective Time or after termination of this Agreement.
8.5. Table of Contents and Captions. The table of contents and captions
contained in this Agreement are solely for convenient reference and shall not be
deemed to affect the meaning or interpretation of any article, section, or
paragraph hereof.
8.6. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the successors and assigns
of the parties hereto.
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8.7. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
8.8. Applicable Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware without regard
to applicable principles of conflicts of law.
8.9. Public Announcements. The parties agree that before the Effective
Time that they shall consult with each other before the making of any public
announcement regarding the existence of this Agreement, the contents hereof or
the transactions contemplated hereby, and to obtain the prior approval of the
other party as to the content of such announcement, which approval shall not be
unreasonably withheld. However, the foregoing shall not apply to any
announcement or written statement which, upon the written advice of counsel, is
required by law to be made, except that the party required to make such
announcement shall, whenever practicable, consult with and solicit prior
approval from such other party concerning the timing and content of such legally
required announcement or statement before it is made.
8.10. Definitions. The following terms are defined in the indicated
place:
Section or
Term Paragraph
---- ---------
Agreement..........................................................Premises
Another SPR Transaction............................................4.3.6.2
Applicable Environmental Laws......................................2.15.3
Break-Up Fee.......................................................4.3.6.2
SPR Commonly Controlled Entity.....................................2.19
SPR Employee Benefit Plan..........................................2.19
SPR Options........................................................1.9
SPR Option Plans...................................................1.9
SPR Reports........................................................2.5
SPR Transaction Proposals..........................................4.3.6.1
Code...............................................................Premises
Commission.........................................................2.5
Current SPR Employee Benefit Plan..................................2.19
Current Metamor Employee Benefit Plan..............................3.9
DGCL...............................................................Premises
Effective Time.....................................................1.3
Encumbrance........................................................2.4
ERISA..............................................................2.19
Exchange Act.......................................................2.2.2
HSR................................................................2.2.2
Intellectual Property..............................................2.10
Investment Company Act.............................................2.23
Joint Proxy Statement..............................................2.22
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Material Adverse Effect............................................1.12
Merger Consideration...............................................1.8.2
Merging Corporations...............................................Premises
Nasdaq.............................................................3.2.1
OSHA...............................................................2.17
PBGC...............................................................2.19
Pooling Transaction................................................2.24
Metamor Common Stock...............................................Premises
Metamor Commonly Controlled Entity.................................3.9
Metamor Employee Benefit Plan......................................3.9
Metamor Reports....................................................3.4
Metamor Shares.....................................................1.8.2
Securities Act.....................................................2.2.2
Share Issuance.....................................................3.2
Superior SPR Transaction Proposal..................................4.3.6.1
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Reorganization to be duly executed as of the date first above written.
METAMOR WORLDWIDE, INC.
By: /s/ XXXXX X. XXXXXXX
-------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
METAMOR ACQUISITION SUB #19, INC.
By: /s/ XXXXX X. XXXXXXX
-------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
SPR INC.
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxxx
Chairman and Chief
Executive Officer
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