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AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), is made and entered into as of this 20th day of December, 2000, by
and among XERTAIN, INC., a Delaware corporation (the "COMPANY"), INNOVATIVE
GAMING CORPORATION OF AMERICA, a Minnesota corporation ("PURCHASER"), and IGCA
ACQUISITION CORP., a Minnesota corporation and wholly owned subsidiary of
Purchaser ("MERGER SUB").
W I T N E S S E T H
WHEREAS, the parties hereto have entered into the certain Agreement and
Plan of Merger, dated as of October 12, 2000 (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, pursuant to the terms of the Agreement, the parties hereto
consummated an Initial Closing at which the Company issued to Merger Sub
1,560,619 shares of the Company's common stock, $.01 par value per share (the
"INITIAL COMPANY SHARES"), in exchange for Purchaser's issuance to the Company
of 1,739,792 shares of Purchaser common stock, $.01 par value per share (the
"INITIAL IGCA SHARES"), which Initial Company Shares and Initial IGCA Shares
represent 14.9% of the issued and outstanding shares of common stock of each
entity after giving effect to such issuances;
WHEREAS, in order to comply with certain regulatory agency regulations,
IGCA and the Company have agreed that (i) IGCA shall repurchase certain of the
Initial IGCA Shares and the Company shall repurchase certain of the Initial
Company Shares such that after such repurchases, the Initial IGCA Shares and
Initial Company Shares which remain outstanding shall represent 9.9% of the
issued and outstanding shares of common stock of IGCA and the Company,
respectively, and (ii) the Merger Consideration (as such term is defined in the
Agreement) shall be adjusted as provided herein; and
WHEREAS, the parties hereto have agreed to amend certain of the
provisions of the Agreement in accordance with Section 10.2 thereof.
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 hereto hereby amend
the Agreement as follows:
ARTICLE I
REPURCHASE OF INITIAL COMPANY SHARES AND INITIAL IGCA SHARES
1.1 REPURCHASE OF IGCA SHARES. The parties hereby agree that
Purchaser shall repurchase from the Company 647,972 of the Initial IGCA Shares
(the "REPURCHASED IGCA SHARES") in exchange for the consideration provided in
Section 1.2 hereof on the Closing Date.
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1.2 CONSIDERATION. As full payment for the Repurchased IGCA Shares to
be repurchased by Purchaser pursuant to the terms and conditions hereof, Merger
Sub shall deliver to the Company and the Company shall repurchase from Purchaser
581,241 of the Initial Company Shares (the "REPURCHASED COMPANY SHARES").
1.3 CLOSING. The closing of the transactions contemplated hereby
shall occur on the date hereof at the offices of Xxxxxx Xxxxxxx Xxxxxx & Brand,
3300 Xxxxx Fargo Center, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx or at
such time, date and place as the parties hereto may mutually agree (the "CLOSING
DATE"). On the Closing Date (i) Merger Sub shall deliver to the Company or its
authorized representative the certificate representing the Initial Company
Shares, which shall be duly endorsed for transfer, and (ii) the Company shall
deliver to Merger Sub or its authorized representative a certificate
representing the such number of shares of the Company's common stock equal to
the Initial Company Shares less the Repurchased Company Shares. Upon Merger
Sub's receipt of such certificate, Purchaser shall promptly cause its transfer
agent to issue to the Company a certificate representing the number of shares of
Purchaser's common stock equal to the Initial IGCA Shares less the IGCA
Repurchase Shares.
ARTICLE II
AMENDMENT TO SECTION 2.3(A) OF THE AGREEMENT
Section 2.3(a) of the Agreement is hereby amended in its entirety and
replaced with the provision set forth below:
"(a) Subject to the provisions of this Agreement and with the
exception of the Initial Company Shares, which Initial Company Shares
shall be cancelled as of the Effective Time and with respect to which
no Merger Consideration (as defined below) shall be payable, all of the
issued and outstanding shares (such shares, exclusive of such Initial
Company Shares as the "COMPANY SHARES") of the capital stock of the
Company (the "COMPANY CAPITAL STOCK") (as more specifically described
in Section 3.6), as of the Effective Time shall be converted into the
right to receive, and there shall be paid and issued as hereinafter
provided, in exchange for the Company Shares, 7,038,181 shares of
Purchaser Stock (the "MERGER CONSIDERATION"), which Merger
Consideration shall be adjusted as provided in Section 2.3(b) below."
ARTICLE III
MISCELLANEOUS
3.1 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
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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.
3.2 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. The term "Initial Company Shares",
as used in Sections 2 through 10 of the Agreement, shall hereafter have the
meaning ascribed to such defined term in the Amendment.
3.3 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.
3.4 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.
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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: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
IGCA ACQUISITION CORP.:
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
XERTAIN, INC.:
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
