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EXHIBIT 2.4
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the
"Amendment") is dated as of April 27, 2001, by and among activeIQ Technologies
Inc., a Minnesota corporation ("AIQ"), Meteor Industries, Inc., a Colorado
corporation ("MI") and MI Merger, Inc., a Minnesota corporation and a
wholly-owned subsidiary of MI ("Merger Sub").
W I T N E S S E T H
WHEREAS, on January 11, 2001, the parties hereto executed that
certain Agreement and Plan of Merger (the "Merger Agreement") pursuant to
which Merger Sub would merge with and into AIQ and all of the outstanding
shares of AIQ would be exchanged for shares of "New MI," the reincorporated
successor corporation of MI;
WHEREAS, all defined terms not otherwise defined (or redefined)
herein shall have the meaning ascribed to such term in the Merger Agreement;
WHEREAS, Article II of the Merger Agreement provided that Merger Sub
would merge with and into AIQ, with AIQ being the surviving corporation and a
wholly-owned subsidiary of New MI upon the effective time of the Merger; and
WHEREAS, the parties hereto wish to amend the Merger Agreement in
order to provide that AIQ shall merge with and into Merger Sub, with Merger
Sub being the surviving corporation and a wholly-owned subsidiary of New MI
upon the effective time of the Merger.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendment of Merger Agreement.
(a) Definition of "Merger". Notwithstanding anything to
the contrary contained in the Merger Agreement, the term "Merger" as used in
the Merger Agreement (as hereby amended) shall mean the merger of AIQ with and
into Merger Sub, with Merger Sub as the surviving corporation.
(b) Amendment of Article II. The paragraph in the Merger
Agreement that immediately precedes Section 2.1 thereof shall be amended and
restated in its entirety to read as follows:
"Subject to the satisfaction or waiver of the conditions set
forth in ARTICLE VII, at the Effective Time (i) MI will merge with
and into New MI (the "Reincorporation Merger"), (ii) AIQ will merge
with and into Merger Sub, (iii) Merger Sub will become a wholly-owned
subsidiary of New MI, (iv) Merger Sub will change its name to "AIQ,
Inc." or such other name acceptable to AIQ, and (v) New MI will
change its name to "Active IQ Technologies, Inc." or such other name
acceptable to AIQ. Merger Sub, as a wholly-owned subsidiary of New MI
after giving effect to the Merger, shall be defined herein as the
"Surviving Company." The Reincorporation Merger will be effected
pursuant to the Reincorporation Articles of Merger and the Merger
will be effected pursuant to the Articles of Merger, both pursuant to
the provisions of, and with the effect provided in, Section 302A.641
of the MBCA."
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(c) Amendment of Section 2.3(f). Section 2.3(f) of the
Merger Agreement is hereby deleted in its entirety.
(d) Amendment of Section 7.1(d). Section 7.1(d) of the
Merger Agreement is hereby amended and restated in its entirety to read as
follows:
"(d) Federal Tax Opinion. The parties shall have
received a tax opinion addressed to AIQ and MI by counsel or
independent certified public accountants acceptable to AIQ based
on customary reliance and subject to customers qualifications,
to the effect that for federal income tax purposes:
(i) The Merger will qualify as a reorganization under
Section 368(a) of the Code. New MI and AIQ will each be a
party to the reorganization within the meaning of Section
368(b) of the Code.
(ii) No gain or loss will be recognized by
shareholders of AIQ and MI upon the receipt of the Surviving
Company Common Stock pursuant to Section 356(a)(1)(B) of the
Code."
(e) Amendment of Section 7.3(b). Section 7.3(b) of the
Merger Agreement is hereby amended to add the following sentence:
"For purposes of this Section 7.3(b), a promissory
note in the principal amount of $500,000 to be delivered by
Capco to MI in connection with the Asset Sale shall constitute
"cash" or "cash equivalents" for the purposes of computing
Available Cash under this Section 7.3(b)."
(f) Amendment to Section 7.2. A new subparagraph (i) of
Section 7.2 shall be added, as follows:
(i) Indemnity Agreement. AIQ, New Meteor and the
Surviving Company shall have executed and delivered to Meteor an
Indemnity Agreement in substantially the form of ANNEX A
attached hereto.
(g) Amendment of Exhibit B. Notwithstanding anything to
the contrary contained in the Merger Agreement, the
term "Articles of Merger" as used in the Merger
Agreement and this Amendment shall mean the articles
of merger in substantially the form attached hereto as
ANNEX B.
(h) Amendment of Article VI. Article VI of the Merger
Agreement is hereby amended to add a new Section 6.17 as follows:
"6.17 Preparation of Securities Reports.
(a) The officers and directors of MI as of the
Effective Time shall prepare (but not sign) New MI's Quarterly Report
on Form 10-Q to be filed with the SEC on or before May 15, 2001 in
connection with MI's quarter ended March 31, 0000 (xxx "Xxxxx Xxxxxxx
00-X"), and shall deliver such quarterly report to New MI on or
before May 11, 2001. When delivered to New MI, the First Quarter 10-Q
shall be accompanied by a written representation from Xxxxxx X. Names
to the effect that, to the best of his knowledge, the information set
forth in the First Quarter 10-Q is true and accurate and complies in
all respects with the Exchange Act, including all rules and
regulations promulgated thereunder.
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(b) The officers and directors of MI as of the
Effective Time shall provide to New MI all financial and other
information relating to MI's business and operations necessary to
prepare New MI's Quarterly Report on Form 10-Q to be filed with the
SEC on or before August 14, 2001 in connection with New MI's quarter
ended June 30, 2001 (the "Second Quarter 10-Q"), including without
limitation a balance sheet as of the Effective Time and an income
statement for the period from April 1, 2001 through the Effective
Time, and shall deliver such information to New MI on or before
August 1, 2001. The information required to be provided to New MI
pursuant to this Section 6.17(b) shall be accompanied by a written
representation of Xxxxxx X. Names to the effect that, to the best if
his knowledge, such information is true and accurate and complies in
all respects with the Exchange Act, including all rules and
regulations promulgated thereunder.
(c) The parties hereto understand and acknowledge the
importance to the shareholders of AIQ that New MI file its Exchange
Act reports in a timely manner. Accordingly, in the event the
officers and directors of MI fail to furnish New MI with the
completed First Quarter 10-Q or the information necessary to complete
New MI's Second Quarter 10-Q by the dates set forth in this Section
6.17, New MI shall issue to the shareholders of AIQ as of the
Effective Time an aggregate of Two Hundred Thousand (200,000) shares
of New MI common stock for each failure to timely provide to New MI
the prepared First Quarter 10-Q or information necessary to complete
the Second Quarter 10-Q."
2. Counterpart Execution. This Amendment may be executed by
the parties hereto in any number of counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
3. Ratification of Merger Agreement. Except as expressly
modified or amended by the provisions of Section 1 hereof, all other terms and
conditions of the Merger Agreement, including all exhibits and schedules
thereto, shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed on the date first written above by their respective
officers.
ACTIVEIQ TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
METEOR INDUSTRIES, INC.
By: /s/ Xxxxxx X. Names
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Xxxxxx X. Names
President and Chief Executive Officer
MI MERGER, INC.
By: /s/ Xxxxxx X. Names
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Xxxxxx X. Names
President and Chief Executive Officer
Exhibit A - Form of Indemnity Agreement (omitted)
Exhibit B - Form of Articles of Merger (omitted)
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