EXHIBIT 2.2
FIRST ADDENDUM TO THE AGREEMENT AND PLAN OF MERGER
BETWEEN INTEGRATED PERFORMANCE SYSTEMS, Inc.
&
BEST CIRCUIT BOARDS, Inc.
November 24, 2004
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WHEREAS, Integrated Performance Systems, Inc. ("IPS") and Best Circuit
Boards, Inc. ("BCB") (collectively referred to as "the Parties") executed
an Agreement and Plan of Merger on October 22, 2004 (the "Merger
Transaction");
WHEREAS, both parties wish to add to and modify certain provisions to that
agreement;
THEREFORE, the parties to the above-referenced agreement hereby make the
following changes to that agreement:
1. Section 1.4, entitled "Merger Consideration; Preliminary Merger
Consideration and Adjustments," is hereby amended and replaced with the
following:
(a) (i) Subject to any adjustments as may be contemplated herein, the
consideration to be paid and delivered by the Buyer to the Shareholders
shall be in an amount as set forth in Schedule 1.4 and hereinafter
referred to as the Merger Consideration.
(ii) Subject to any adjustments as may be required hereunder, a
portion of the Merger Consideration shall be under three notes
payable (as defined below), and a portion shall be payable in
shares of IPS preferred stock, Series F, one share of which is
convertible into 1,000 shares of common stock of IPS (the
"Integrated Shares").
(b) (i) The Merger Consideration agreed to by all parties involved
is a $3,000,000.00 note payable due in 3 months, a $1,000,000 note
payable due in 3 years, a note payable in an amount to be determined
under Section 7.3 below with respect to advances made by Company and
Shareholders on behalf of Buyers, and Integrated common stock equal to
67.25% of the total issued and outstanding at the time of closing.
(c) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder of capital stock of the Company,
Shareholders of Company collectively shall receive a number of shares
of Integrated equal to 67.25% of the total issued and outstanding at
the time of closing (the "Preliminary Stock Consideration"); (B) A note
payable in the amount of three million dollars ($3,000,000.00) (the
"Note Three Consideration") - see Exhibit C2 for Promissory Note Three;
(C) a note payable in the amount of $1,000,000 (the "Note One
Consideration") - see Exhibit B for Promissory Note One; and (D) a
note payable in an amount to be determined under Section 7.3 below (the
"Note Two Consideration") - see Exhibit C for the Promissory Note Two).
(d) As a result of the Merger and without any action on the part of
the holder thereof, at the Effective Time all Company Shares shall be
transferred to Xxxxxxx X. Xxxxxxxx as escrow agent and trustee as
security for the payment of the promissory notes described herein, and
each holder of Company Shares shall thereafter cease to have any rights
with respect to such Company Shares, except the right to receive,
without interest, the Merger Consideration in accordance with this
Section 1.4 hereof upon the surrender of a certificate (a
"Certificate") representing such Company Shares.
(e) Each Company Share issued and held in the Company's treasury at
the Effective Time shall, by virtue of the Merger, be transferred to
escrow agent and trustee.
(g) At Closing, the BUYERS shall pay and deliver to the Company
Shareholders the Notes One, Two, and Three as described in subsection
(c) of this section, and stock consideration as described herein.
(i) Exclusive of Company's right of future set-offs as provided
in Section 1.7 below, the agreed upon Merger Consideration shall
not be subject to any adjustments.
The Stock Consideration shall be represented by the BUYER Integrated's
Series F Preferred Shares, which have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") and are subject to
sale restrictions thereunder. Such restrictions shall be made in the form
of a restrictive legend placed on such shares..
2. Section 1.5 is hereby added, to read as follows:
S1.5. Adjustments to the Preliminary Stock Consideration
For purposes of the closing of the Merger Transaction, certain assumptions
will be made regarding the number of common shares estimated to be issued
and outstanding following the Capital Raise (as described in subsection
7.2.2 below). At such time as the exact number of shares issued and
outstanding can be determined subsequent to the Capital Raise, the number of
shares of Integrated's Series F Preferred issued pursuant to Section 1.4
above shall be adjusted to reflect the 67.25% as described above.
3. Section 6.2. is hereby amended by replacing every instance of "75%" with
"100%".
4. Section 7.2.4. is hereby amended by replacing every instance of "75%"
with "100%".
/s/ Xxxx Xxxxxx /s/ D. Xxxxxx Xxxxx
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Xxxx Xxxxxx D. Xxxxxx Xxxxx
Best Circuit Boards, Inc. Integrated Performance Systems, Inc.
Its: President/Chairman Its: President/Chairman
