Exhibit 2.8
AMENDMENT AGREEMENT TO
VOTING AND EXCHANGE AGREEMENT
This amendment agreement (the "Amendment Agreement") is entered into as of
January 22, 2002, among ASPi Europe, Inc. ("Pubco"), a Delaware Corporation,
GrowthExperts Group Inc. ("GrowthExperts"), an Alberta corporation, Xxxxx Xxx
("Trustee") and the Holders of Exchangeable Shares of GrowthExperts as
represented by Xxxxx Xxx ("Dow").
WHEREAS:
A. Pursuant to a voting and exchange agreement (the "Exchange Agreement") dated
as of June 11, 2001 among ASPi Europe, Inc., GrowthExperts Group Inc. (being one
of the pre-amalgamated entities of GrowthExperts), Xxxxx Xxxxxx, Barristers and
Solicitors, ASPi Alberta Holdings Inc. and the Holders of Exchangeable Shares of
GrowthExperts, such parties made appropriate provisions and to establish a
procedure whereby the rights to require Pubco to acquire Exchangeable Shares
from the Holders thereof (other than Pubco and its subsidiaries) would be
exercisable from time to time by such Holders of Exchangeable Shares;
B. Pursuant to an assignment into bankruptcy on December 6, 2001 of
GrowthExperts it was deemed desirable to effect an amendment to the Exchange
Agreement so as to delete the voting rights granted therein to Holders of
Exchangeable Shares by Pubco and to delete the right of each Holder of
Exchangeable Shares to convert such Exchangeable Shares into common shares of
Pubco;
C. Pursuant to the terms of the Exchange Agreement and in particular, Article 12
thereof, a meeting of the Holders of Exchangeable Shares was held on January 22,
2002 whereat in excess of two-thirds (66.67%) of the votes cast by the Holders
of Exchangeable Shares, in person or by proxy, approved the following amendments
to the Exchange Agreement and designated Xxxxx Xxx as the representative of the
Holders of Exchangeable Shares to execute this Amendment Agreement; and
D. As a result of the assignment into bankruptcy of GrowthExperts, the law firm
of Xxxxx Xxxxxx, Barristers and Solicitors, being the original Trustee to the
Exchange Agreement resigned as trustee and pursuant to section 10.1 of the
Exchange Agreement, Pubco and GrowthExperts has appointed Xxxxx Xxx, being a
director of GrowthExperts, as successor Trustee for the purposes of the Exchange
Agreement.
NOW THEREFORE, in consideration of the respective covenants and agreements
provided in this Amendment Agreement and for other good and valuable
consideration (the receipt and sufficiency which are hereby acknowledged) the
parties hereto agree as follows:
1. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Exchange Agreement.
2. The Exchange Agreement is hereby amended by deleting therefrom in
their entirety, Articles 3, 4, 5 and 11.
3. The Exchange Agreement is hereby amended by deleting from Article 1 the
following definitions: "Pubco Meeting", "Pubco Consent", "Equivalent Vote
Amount", "Stockholder Votes", "List", "Exchange Right", "Exchangeable Share
Consideration", "Retraction Call Right", "Redemption Call Right", "Liquidation
Call Right", "Insolvency Event", "Automatic Exchange Rights", "Share Price",
"Officer's Certificate", "Share Consideration", "Retracted Shares", "Liquidation
Event", "Liquidation Event Effective Time" and "Pubco Successor".
4. Section 13.1 of the Exchange Agreement is hereby amended by
deleting paragraph (b) therefrom and replacing such paragraph with the
following:
"(b) each of Amalco and Pubco elects in writing to terminate the
Trust and such termination is approved with Exchangeable
Shareholder Approval; or".
5. Section 13.1 of the Exchange Agreement is hereby amended by
adding the following as paragraph (c) to such section:
"(c) any proceedings are initiated to adjudicate Amalco a bankrupt
or insolvent and Pubco elects to terminate this Agreement
whereupon any and all of Pubco Special Voting Stock shall be
automatically cancelled on the books and records of Pubco, the
Voting Share shall forthwith thereafter be returned to Pubco
by the Trustee for cancellation and this Agreement shall
terminate.".
6. Section 13.2 of the Exchange Agreement is hereby deleted in its
entirety and is replaced with the following:
"13.2 Survival of Agreement
Articles 8 and 9 hereof shall survive any termination of the Trust
and this Agreement."
7. In all other respects, the Exchange Agreement remains unamended.
8. This Amendment Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respect of successors and permitted
assigns and to Holders of Exchangeable Shares.
9. This Amendment Agreement shall be construed and enforced in accordance with
the laws of the Province of British Columbia and the federal laws of Canada
applicable therein.
10. This Amendment Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall be taken together to
constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereby have caused this Amendment Agreement to be
duly executed as of the date first above written.
ASPi EUROPE, INC.
per:
"Xxxxxxx XxXxxxx"
--------------------------
Authorized Signatory
GROWTHEXPERTS GROUP INC.
per:
"Xxxxx Xxx"
--------------------------
Authorized Signatory
XXXXX XXX as Trustee
"Xxxxx Xxx"
--------------------------
Xxxxx Xxx
As duly appointed authorized representative of the Holders of Exchangeable
Shares in GrowthExperts Group Inc.
"Xxxxx Xxx"
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XXXXX XXX
