EXHIBIT 10.1
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this
"Amendment") is made and entered into as of July 29, 2005 among MIKOHN GAMING
CORPORATION, a Nevada corporation doing business as Progressive Gaming
International Corporation ("PGIC"), VIKING ACQUISITION SUB, INC., a Delaware
corporation and a wholly owned subsidiary of PGIC ("Merger Sub I"), VIKING
MERGER SUBSIDIARY, LLC, a Delaware limited liability company ("Merger Sub II"
and, together with Merger Sub I, the "Merger Subs") and VIRTGAME CORP., a
Delaware corporation (the "VirtGame").
RECITALS
A. The parties hereto entered into an Agreement and Plan of Merger and
Reorganization dated as of February 19, 2005 (the "Merger Agreement"), pursuant
to which the parties have agreed to effect (i) a merger of Merger Sub I with and
into VirtGame ("Merger I") in accordance with the Merger Agreement and Delaware
General Corporation Law, and (ii) immediately following the effectiveness of
Merger I, a merger of VirtGame with and into Merger Sub II in accordance with
the Merger Agreement and Delaware Limited Liability Company Act ("Merger II",
and together with Merger I, the "Transaction"). Upon consummation of the
Transaction, VirtGame will cease to exist.
B. The parties hereto wish to amend the Merger Agreement for the limited
purposes set forth herein.
C. Certain capitalized terms used in this Amendment shall have the
meanings given them in the Merger Agreement, unless the context requires
otherwise.
NOW, THEREFORE, in consideration of the covenants, promises and representations
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
AMENDMENT OF MERGER AGREEMENT
1.1 Amendment of Definition of Outside Date. Section 8.1(b) of the Merger
Agreement is hereby amended such that the phrase "August 1, 2005" shall be
deleted in its entirety and replaced with the phrase "October 1, 2005."
ARTICLE II
ADDITIONAL PROVISIONS
2.1 Entire Agreement and Modification. Without limiting any of the
provisions of Section 9.4 of the Merger Agreement, the Merger Agreement, as
amended by this Amendment, and the documents and instruments and other
agreements among the parties hereto as contemplated by or referred to herein or
in the Merger Agreement, constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, it being understood that the Confidentiality Agreement
shall continue in full force and effect until the Closing and shall survive any
termination of the Merger Agreement, as amended.
17
2.2 Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
2.3 Headings. The Section headings contained in this Amendment are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment.
2.4 Severability. In the event that any provision of this Amendment or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Amendment will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Amendment with a valid and enforceable provision
that will achieve, to the greatest extent possible, the economic, business and
other purposes of such void or unenforceable provision.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
18
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized respective officers as of the date first written above.
MIKOHN GAMING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------- -----------------------
VIKING ACQUISITION SUB, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- -----------------------
VIKING MERGER SUBSIDIARY, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- -----------------------
VIRTGAME CORP.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------- -----------------------
19
