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EXHIBIT 2(2)
AMENDMENT NO. 3
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), is made and entered into effective as of the 30th day of June,
2001, by and among XERTAIN, INC., a Delaware corporation (the "COMPANY"),
INNOVATIVE GAMING CORPORATION OF AMERICA, a Minnesota corporation (the
"PURCHASER"), and IGCA ACQUISITION CORP., a Minnesota corporation and wholly
owned subsidiary of Purchaser (the "MERGER SUB").
W I T N E S S E T H
WHEREAS, the parties hereto have entered into that certain Agreement
and Plan of Merger, dated as of October 12, 2000, as amended on December 20,
2000 and on March 31, 2001 (as amended, the "AGREEMENT"), pursuant to which the
Company will be merged, subject to the terms and conditions contained in the
Agreement, with and into Merger Sub in accordance with the laws of the states of
Minnesota and Delaware;
WHEREAS, the parties have agreed to amend certain of the provisions of
the Agreement in accordance with Section 10.2 thereof, including Section
9.1(b)(i), and Section 2.3(b) of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and certain other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby amend the
Agreement as follows:
ARTICLE I
AMENDMENTS
1.1 AMENDMENT TO SECTION 2.3(B) OF THE AGREEMENT. Section 2.3(b) of
the Agreement is hereby amended in its entirety and replaced with the provision
set forth below:
"(b) The number of shares of Purchaser Stock constituting the
Merger Consideration shall be increased by one share of Purchaser Stock
for each share of Purchaser Stock issued after the date hereof and on
or prior to March 31, 2001 upon the conversion of any shares of
convertible preferred stock of the Purchaser.
1.2 AMENDMENT TO SECTION 9.1(B)(I) OF THE AGREEMENT. Section
9.1(b)(i) of the Agreement is hereby amended in its entirety and replaced with
the provision set forth below:
"(i) the Merger shall not have been consummated on or prior to
December 31, 2001 (unless such date is extended by the mutual agreement
of each of the parties hereto); provided, however, that the right to
terminate the Agreement pursuant to this Section 9.1(b)(i) shall not be
available to any party whose failure to perform any of
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its obligations under this Agreement results in the failure of the
Merger to be consummated by such time;"
ARTICLE II
MISCELLANEOUS
2.1 ENTIRE AGREEMENT. This Amendment, the Agreement and the documents
or instruments referred to in the Agreement, including but not limited to the
Exhibits and Schedules attached thereto, which Exhibits and Schedules are
incorporated therein by reference, embody the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, representations, warranties, covenants, or
undertakings, other than those expressly set forth or referred to herein or in
the Agreement. This Amendment supersedes all prior agreements and the
understandings between the parties with respect to the subject matter contained
herein.
2.2 DEFINED TERMS. Except as otherwise expressly provided, or unless
the context otherwise requires, all capitalized terms used herein have the
meanings ascribed to them in the Agreement.
2.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute but one and the same document.
2.4 RATIFICATION AND REAFFIRMATION OF AGREEMENT. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
(Signature Page Follows)
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IN WITNESS WHEREOF, Purchaser, Merger Sub and the Company have caused
this Agreement to be signed and delivered by their respective duly authorized
officers as of the date first above written.
INNOVATIVE GAMING CORPORATION OF AMERICA:
By: ___________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
IGCA ACQUISITION CORP.:
By: ___________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
XERTAIN, INC.:
By: ___________________________________
Name: Xxxxx Xxxxxxxx
Title: ___________________________________
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