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EXHIBIT 2.2
AMENDMENT ONE
TO
AGREEMENT OF MERGER
This Amendment One to Agreement of Merger, effective the 31st day of
December, 1996, is entered into by and among Topro, Inc., a Colorado
corporation ("Topro"), on its behalf and on behalf of its wholly-owned
subsidiary, Topro ACS Corp., a newly formed Pennsylvania corporation ("Newco"),
All Control Systems, Inc., a Pennsylvania corporation ("ACS") and ProMeta
Consulting, Inc., a Pennsylvania corporation ("ProMeta").
WHEREAS, Topro, ACS and Newco entered into an Agreement of Merger
dated December 31, 1996 (the "Merger Agreement") pursuant to which Topro will
acquire ACS by the merger of Newco into ACS; and
WHEREAS, the parties hereto intended to include ProMeta in the Merger
Agreement such that Topro would also acquire ProMeta by merging ProMeta with
and into ACS at the same time that Newco is merged with and into ACS; and
WHEREAS, the parties desire to make certain other modifications to the
Merger Agreement to clarify the understanding of the parties;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties and covenants contained herein and in
the Merger Agreement, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. The following introductory sentence hereby is amended to read
as follows:
THIS AGREEMENT OF MERGER (hereinafter called "Agreement"),
executed as of the 31st day of December, 1996, by and among Topro,
Inc., a Colorado corporation ("Topro"), on its behalf and on behalf of
its wholly- owned subsidiary, Topro ACS Corp., a newly formed
Pennsylvania corporation ("Newco"), All Control Systems, Inc., a
Pennsylvania corporation ("ACS") and ProMeta Consulting, Inc., a
Pennsylvania corporation ("ProMeta").
2. Section 1.1(a) hereby is amended to read as follows:
(a) Newco and ProMeta shall simultaneously be merged with
and into ACS (such transaction hereafter referred to as the "Merger"),
and ACS shall be the surviving corporation in both mergers (the
"Surviving Corporation"). The separate existence and corporate
organization of Newco and ProMeta shall cease upon filing of the
Articles of Merger with the Pennsylvania Secretary of State, and
thereupon ACS, ProMeta and Newco shall be a single corporation.
3. The last sentence under Section 1.1(e) hereby is amended to
read as follows:
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However, the effective date of the Merger for accounting purposes
shall be November 30, 1996 (the "Effective Time"), at which time the
effective control of ACS and ProMeta shall have been transferred to
Topro, except that Topro shall not make any significant changes in the
operations of ACS until the Closing Date. All management decisions
made at ACS from the Effective Time are subject to direction, review
and approval by Xxxx Xxxxxxx, CEO of Topro.
4. The first two sentences in Section 1.2 hereby are amended to
read as follows:
As of the Effective Time, by virtue of the Merger and without any
action on the part of any holder thereof, all shares of ACS and
ProMeta common stock issued and outstanding immediately prior to the
Effective Time shall be converted into 1,800,000 restricted shares
(the "Base Share Consideration") of the common stock, par value $.0001
per share of Topro ("Topro Common Stock"). If additional ACS shares
are issued after the Effective Time but prior to the Closing Date,
each such share shall be exchanged for 1,440 shares of Topro Common
Stock (the "Additional Share Consideration"); provided, however, that
such exchange ratio shall only apply to the extent additional ACS
shares are purchased at a minimum price of $2,160 per ACS share.
5. Section 1.5 hereby is amended to read as follows:
Topro shall cause the issuance of the Topro common stock upon
surrender of certificates or stock powers endorsed in blank by the
respective ACS shareholders representing shares of ACS and ProMeta
common stock. All shares of Topro common stock into which shares of
ACS and ProMeta common stock are converted at the Closing Date
pursuant to Sections 1.2, 1.3 and 1.4 (collectively, the "Merger
Shares") shall be deemed, for all corporate purposes, to have been
issued by Topro at the Closing Date. The Merger Shares may be held in
escrow, as described above.
6. Section 1.6 hereby is amended to read as follows:
At the Effective Time the stock transfer books of ACS and ProMeta
shall be closed, except with respect to any ACS shares issued for
Additional Share Consideration, and no transfer of ACS or ProMeta
common stock shall thereafter be made on such stock transfer books.
7. Section 1.7 hereby is amended to read as follows:
As soon as practicable after the Closing Date, ACS, ProMeta and Newco
shall, in accordance with Section 1.1(e), cause the Articles of Merger
to be filed with the Secretary of State of the Commonwealth of
Pennsylvania and ACS, ProMeta, Newco and Topro will take such other
and further actions as may be required by the Pennsylvania Statute in
connection with the filing and in order to complete the Merger.
8. The introductory sentence under Article III hereby is amended
to read as follows:
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ACS and ProMeta represent, warrant to and agree with Topro and Newco
as follows, and any references to ACS in this Article III and in
Articles IV, VI and VIII shall be read to include ProMeta except with
respect to the amounts of authorized and outstanding capital stock
stated in the first two sentences of Section 3.2:
9. The first two sentences of Section 3.2 hereby are replace by
the following first two sentences, and a third sentence is inserted
after the first two sentences, as follows:
The authorized capital stock of ACS consists of 5,000,000 shares of
common stock ("ACS Common Stock") and the authorized capital stock of
ProMeta consists of 1,000 shares of common stock (the "ProMeta Common
Stock"). As of December 31, 1996 there were 1,250 shares of ACS
Common Stock and 1,000 shares of ProMeta Common Stock issued and
outstanding. Any subsequent reference in this Agreement to ACS Common
Stock shall include ProMeta Common Stock.
IN WITNESS WHEREOF, this Amendment One to Agreement of Merger is
executed this 17th day of January, 1997, to be effective as of the day first
set forth above.
TOPRO, INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President
TOPRO ACS CORP.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President
ALL-CONTROL SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
PROMETA CONSULTING, INC.
By: /s/Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
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