Amendment No. 3 to Agreement and Plan of Merger among Xertain, Inc., Innovative Gaming Corporation of America, and IGCA Acquisition Corp.

Summary

This amendment updates the merger agreement between Xertain, Inc., Innovative Gaming Corporation of America, and IGCA Acquisition Corp. It changes how the number of shares in the merger consideration is calculated and extends the deadline for completing the merger to December 31, 2001, unless all parties agree to a further extension. All other terms of the original agreement remain unchanged and in effect.

EX-2.(2) 4 c64438ex2-2.txt AMENDMENT #3 TO AGREEMENT & PLAN OF MERGER 1 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 2 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) 2 3 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: Roland M. Thomas Title: Chief Executive Officer IGCA ACQUISITION CORP.: By: ___________________________________ Name: Roland M. Thomas Title: Chief Executive Officer XERTAIN, INC.: By: ___________________________________ Name: Steve Peterson Title: ___________________________________ 3