EXHIBIT 2.2
AMENDING AGREEMENT
THIS AMENDING AGREEMENT made June 29, 2001
BETWEEN:
ASPI EUROPE, INC., incorporated under the laws of Delaware
("ASPI")
AND:
ASPI ALBERTA HOLDINGS INC., incorporated under the laws of Alberta
("Acquiror")
AND:
GROWTHEXPERTS GROUP INC., incorporated under the laws of Alberta
("Target")
WHEREAS:
A. The Target, the Acquiror and ASPI have entered into an Amalgamation and
Re-Organization Agreement, dated for reference June 11, 2001 (the "Amalgamation
Agreement"); and
B. The parties are now desirous of amending the Amalgamation Agreement on the
terms and conditions set forth herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained and other good and valuable
consideration (the receipt and sufficiency of which is acknowledged by each of
the parties), the parties agree as follows:
1.1 All capitalized terms used herein and not otherwise defined shall have the
meaning given to them in the Amalgamation Agreement.
1.2 Sections 3.5 and 3.6 of the Amalgamation Agreement are hereby deleted and
replaced in its entirety by the following:
"3.5 Number of Directors. The number of directors of the Amalgamated
Corporation shall be fixed at six (6).
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3.6 First Directors. The first directors of the Amalgamated Corporation
shall be:
Name Address
---- -------
Xxxxx X. Xxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX, X0X 0X0
Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX, X0X 0X0
Xxxxxxx XxXxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX, X0X 0X0
F. Xxxxxx Xxxxxxx, III 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX, X0X 0X0
Xxxxx Xxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX, X0X 0X0
Xxxxxxx Xxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX, X0X 0X0
The first directors shall hold office until the earlier of the first annual
general meeting of the shareholders of the Amalgamated Corporation, or the
appointment or election of their successors. The subsequent directors shall
be elected or appointed each year thereafter as provided for in the by-laws
of the Amalgamated Corporation. The management and operation of the
business and affairs of the Amalgamated Corporation shall be under the
control of the board of directors as it is constituted from time to time."
1.3 Section 11.2 of the Amalgamation Agreement is hereby deleted and replaced
in its entirety by the following:
"11.2 Termination. This Agreement may be terminated by mutual agreement of
the respective boards of directors of the parties hereto, without further
action on the part of the shareholders of the Acquiror or the Target prior
to the Closing Date. This Agreement shall also terminate without further
notice or agreement in the event that:
(a) the Amalgamation is not approved by the required majority at the
Amalgamation Meeting; or
(b) by July 9, 2001, the Amalgamation has not been completed. For the
purposes of this Section 11.2(b), the Amalgamation shall be deemed to have
been completed upon the issuance of the Certificate of Amalgamation."
-2-
1.4 In addition to the Amalco Exchangeable Shares that the holders of the Target
Common Shares will receive pursuant to Section 3.10 of the Amalgamation
Agreement, the holders of the Target Common Shares will be entitled to receive:
(a) a pro-rata portion of 250,000 Amalco Exchangeable Shares in the event
that APSI does not raise an additional US$250,000 (over and above the
gross proceeds that ASPI raised by way of a private placement as of
the Closing Date) on or before 30 days following the Closing Date and
such certificates representing such Amalco Exchangeable Shares shall
be issued as soon as practicable thereafter; and
(b) a pro-rata portion of 500,000 Amalco Exchangeable Shares in the event
that APSI does not raise an additional US$500,000 (over and above the
gross proceeds that ASPI raised by way of a private placement as of
(i) the Closing Date and (ii) pursuant to Section 1.4(a) above) on or
before 90 days following the Closing Date and certificates
representing such Amalco Exchangeable Shares shall be issued as soon
as practicable thereafter.
The additional Amalco Exchangeable Shares issuable pursuant to this
Section 1.4, if any, shall be issued pro-rata, in accordance with the number of
shares held by each holder to the total number of Target Common Shares, to the
holders of record of the Target Common Shares at 5:00 PM on the date prior to
the Closing Date.
1.5 Except as amended hereby, the Amalgamation Agreement shall bind the parties
thereto in accordance with its terms.
1.6 If a provision of this Agreement is wholly or partially invalid, this
Agreement shall be interpreted as if the invalid provision had not been a part.
1.7 No condoning, excusing or waiver by any party of any default, breach or
non-observance by any other party will operate as a waiver of that party's
rights in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of that party
in respect of any continuing or subsequent default, breach or non-observance,
and no waiver will be inferred from or implied by anything done or omitted to be
done by the party having those rights.
1.8 This Agreement will be governed by and construed in accordance with the
laws of the Province of British Columbia.
1.9 Delivery of an executed copy of this Agreement by electronic facsimile
transmission or other means of electronic communication capable of producing a
printed copy will be deemed to be execution and delivery of this Agreement as of
the date first set forth above
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1.10 This Agreement may be executed in facsimile counterparts, each of which
when executed and delivered shall be deemed to be an original and all of which
counterparts together shall constitute the same Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
ASPI EUROPE, INC.
Per: /s/ Xxxxxxx XxXxxxx
-----------------------------------
Authorized Signatory
ASPI ALBERTA HOLDINGS INC.
Per: /s/ Xxxxxxx XxXxxxx
-----------------------------------
Authorized Signatory
GROWTHEXPERTS GROUP INC.
Per: /s/ Xxxxx Xxx
-----------------------------------
Authorized Signatory
