FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
EXHIBIT
2.2
FIRST
AMENDMENT TO
AGREEMENT
AND PLAN OF
REORGANIZATION
This
First Amendment to Agreement and Plan of Reorganization (this
“Amendment”) is entered into as of July 25, 2007, between Interactive
Games, Inc., a Nevada corporation (the “IGAM”) and Nuvo Solar Energy,
Inc., a Colorado corporation (the “Nuvo”).
A. IGAM
and
Nuvo have entered into that certain Agreement and Plan of Reorganization dated
April 23, 2007 (the “Exchange Agreement”) whereby all of the outstanding
shares of Nuvo common stock will be acquired by IGAM in exchange for 1,000,000
shares of preferred stock in IGAM (the “Exchange”).
B. IGAM
and
Nuvo have agreed to amend the Exchange Agreement to (i) have IGAM issue IGAM
common stock directly to Nuvo shareholders in exchange for such shareholders
shares of Nuvo common stock rather than first issuing IGAM preferred stock
to
the Nuvo shareholders; (ii) have the spin-off of IGAM’s operating subsidiary be
a post-closing obligation of IGAM rather than a condition to closing, and (iii)
make other changes to the Exchange Agreement as the parties have collectively
deemed necessary or appropriate.
The
parties hereby agree as follows:
Article
1
Amendment
1.1 Amendment
to Exchange
. In
order to reflect a change in the structure of the Exchange, Recital D, Section
1.01, Section 1.02, Section 1.03, and Section 9.01 of the Exchange Agreement
are
hereby deleted in their entirety and replaced as set forth
below. Section 8.01(g) of the Exchange Agreement is hereby deleted in
its entirety and the remaining sections of Articles 8 of the Exchange Agreement
shall be adjusted accordingly. All references to the defined term
“IGAM Preferred Stock” in the Exchange Agreement are hereby replaced with the
defined term “IGAM Shares” or, to the extent the context requires, are
deleted. Exhibit C to the Exchange Agreement is hereby deleted in its
entirety.
“D.
IGAM
and NUVO propose to enter into this Agreement which provides among other things,
that all of the outstanding shares of NUVO Common Stock be acquired by IGAM
in
exchange for a number of shares of IGAM Common Stock constituting approximately
66 2/3 % of the issued and outstanding number of shares of IGAM Common Stock
immediately following the Effective Time (as defined in Section 2.01), on a
fully diluted basis.”
“1.01 At
the Effective Time, subject to the terms and conditions herein, each share
of
NUVO Common Stock issued and outstanding immediately prior to the Effective
Time
(other than Dissenting Shares, as defined in Section 1.04) shall be acquired
by
IGAM in exchange for a number of shares of IGAM Common Stock (rounded up to
the
nearest full share) equal to a fraction, (i) the numerator of which is equal
to
the product of (A) the aggregate number of shares of IGAM Common Stock issued
and outstanding immediately prior to the Effective Time, on a fully diluted
basis, multiplied by (B) two (2), and (ii) the denominator of which shall be
the
number of Shares of Nuvo Common Stock issued and outstanding immediately prior
to the Effective Time, on a fully diluted basis (other than Dissenting Shares)
(the “Exchange Ratio”). The shares of IGAM Common Stock issued
to the Shareholders shall be referred to herein as the “IGAM Shares”, and the
exchange of all shares of NUVO Common Stock for IGAM Shares shall constitute
the
“Exchange”. IGAM Shares shall be issued as set forth in Exhibit A to
this Agreement.”
“1.02 For
the purposes of determining the number of fully diluted shares of IGAM Common
Stock issued and outstanding immediately prior to the Effective Time under
Section 1.01 hereof, the parties agree that the number of shares of IGAM Common
Stock shall include the number of shares IGAM Common Stock into which the
Convertible Debt of IGAM (as defined in Section 8.01(i)) is convertible, as
determined assuming a conversion price equal to 75% of the lowest closing price
of the IGAM Common Stock (as reported by Bloomberg, LP) over the 20 trading
days
immediately prior to the Effective Date (as defined in Article 2).”
“1.03 As
of the
Effective Time, each outstanding stock certificate that immediately prior to
the
Effective Time represented shares of NUVO Common Stock shall be deemed for
all
purposes to evidence ownership and to represent the number of shares of IGAM
Common Stock for which such shares of NUVO Common Stock have been exchanged
pursuant to Section 1.01. After the Effective Time, the holders
of certificates evidencing outstanding shares of NUVO Common Stock immediately
prior to the Effective Time shall deliver such certificates of NUVO Common
Stock, duly endorsed so as to make IGAM the sole holder thereof, free and clear
of all claims, and encumbrances and upon receipt of such
certificates, IGAM shall deliver a transmittal letter
directed to the transfer agent of IGAM directing the issuance of the IGAM Shares
to the Shareholders as set forth on Exhibit A of this Agreement. Any
shares of IGAM Common Stock issued pursuant to this Agreement will not be
transferable except (a) pursuant to an effective registration statement under
the Securities Act or (b) upon receipt by IGAM of a written opinion of counsel
for the holder reasonably satisfactory to
IGAM
to
the effect that the proposed transfer is exempt from the registration
requirements of the Securities Act of 1933, as amended, and relevant state
securities laws. Restrictive legends shall be placed on all
certificates representing IGAM Common stock issued pursuant to this Agreement
as
set forth in Section 12.02.”
“9.01 Name
Change. Within a reasonably practicable time after the Effective
Time, IGAM shall change its name to China Nuvo Solar Energy, Inc.”
1.2 Amendment
related to Spin-Off. In order to reflect a change to the
timing of the spin-off of IGAM’s operating subsidiary, Section 8.01(h) of the
Exchange Agreement is hereby deleted in its entirety. New Section
9.04 is hereby added to the Exchange Agreement as set forth below.
(a) “9.04 Spin-Off. Within
a reasonably practicable time after the Effective Date, IGAM shall consolidate
its operating assets into one or more operating subsidiaries (collectively,
the
“Operating Subsidiary”) and shall spin-off the Operating Subsidiary to its
stockholders of record on a pro-rata basis as of July 10, 2007, which is the
record date for such distribution, in a transaction which shall be, to the
extent possible, tax-free to such stockholders and shall cause to have filed
a
registration statement on Form 10 or SB-2 for the Operating
Subsidiary.”
1.3 Amendment
to IGAM Liabilities. In order to reflect a change in IGAM’s
liabilities at Effective Time caused by the change in the timing of the spin-off
of IGAM’s operating subsidiary, Sections 3.05, Section 5.01(c) and 8.01(i) of
the Exchange Agreement are hereby deleted in their entirety, and Sections 3.05
and 5.01(c) are replaced as set forth below.
(a) “3.05 Absence
of Undisclosed Liabilities. IGAM has no material liabilities of any
nature, whether fixed, absolute, contingent or accrued, which were not reflected
on the most recently provided financial statements of IGAM (as required pursuant
to Section 5.01(a) hereto) or otherwise disclosed in Schedule 3.05
hereto.”
(b) “5.01(c) Liens
and Liabilities. A complete and accurate list of all material liens,
encumbrances, easements, security interests or similar interests in or on any
of
the assets of IGAM and all debts, liabilities and obligations of IGAM incurred
or owing as of the date of this Agreement.”
1.4 Amendment
to Notice Provision. Section 13.03 of the Exchange Agreement is
hereby amended to add the following person at the following address to receive
copies of all notices delivered to IGAM:
“Xxxxx
Xxxxxxx
00
Xxxxxx Xxxxx
Xxxxxxxxxxxx,
XX 00000”
Article
2
General
Provisions
2.1 Exchange
Agreement in Full Force and Effect. The
Exchange Agreement shall continue in full force and effect without amendment
except as expressly provided for in this Amendment.
2.2 Severability. If
any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties shall negotiate in good faith to modify this
Amendment and to preserve each party’s anticipated benefits under this
Amendment.
2.3 Amendment. This
Amendment may not be amended or modified except by an instrument in writing
approved by the parties to this Amendment and signed on behalf of each of the
parties hereto.
2.4 Miscellaneous. This
Amendment (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement, and supersedes all other prior
agreements and undertakings, both written and oral, among the parties, with
respect to the subject matter hereof; and (b) shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and
assigns, but shall not be assignable by either party hereto without the prior
written consent of the other party hereto.
2.5 Counterparts;
Delivery. This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. In
addition, executed counterparts may be delivered by means of facsimile or other
electronic transmission; and signatures delivered by those means shall be fully
and validly binding to the same extent as the delivery of original
signatures.
2.6 Governing
Law. This
Agreement is governed by the internal laws of the State of Florida without
regard to its conflicts-of-law principles.
The
parties hereto are signing this First Amendment to Agreement and Plan of
Reorganization as of the date first set forth above.
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INTERACTIVE
GAMES, INC.
By: /S/
XXXXX
XXXXXXXXX
Name: Xxxxx
Xxxxxxxxx
Title: Chief
Financial
Officer
|
NUVO
SOLAR ENERGY, INC.
By: /S/
XXXXX
XXXX
Name: Xxxxx
Xxxx
Title: President
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