EXHIBIT 2.2
AMENDMENT NO. 1
TO STOCK PURCHASE AGREEMENT
BY AND BETWEEN
EQUITEX, INC.
AND
THE SELLING STOCKHOLDERS
OF CHEX SERVICES, INC.
DATED AUGUST 31, 2001
THIS AMENDMENT NO. 1, dated as of November 30, 2001, amends and
modifies that certain Stock Purchase Agreement by and between Equitex, Inc., a
Delaware corporation or its assignee, on the one hand, and Lewis N. Mirviss and
James P. Welbourn, individuals residing in the State of Minnesota, stockholders
of Chex Services, Inc., a Minnesota corporation, and each of the other
stockholders of Chex Services, Inc., as identified on Exhibit A thereto, on the
other, dated as of August 31, 2001 (the "Agreement"). Capitalized terms used but
not defined herein shall have the meanings attributed to them in the Agreement.
W I T N E S S E T H
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WHEREAS, Buyer and the Selling Stockholders entered the Agreement as of
August 31, 2001; and
WHEREAS, Buyer and the Selling Stockholders are desirous of amending
and supplementing the Agreement, as more fully set forth herein, pursuant to and
in accordance with the provisions of Section 12.2 thereof, in light of certain
changes in circumstance and to evidence certain additional agreements of the
parties;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, covenants and agreements hereinafter set forth, the parties
hereto agree as follows:
1. ACKNOWLEDGMENT OF THE DEATH OF MR. MIRVISS. The parties regretfully
acknowledge the untimely death of Mr. Mirviss on November 14, 2001.
Since his shares of Chex Services were held in joint tenancy, Buyer
will, subject to the receipt of a copy of his death certificate, issue
the Equitex Common Stock in respect of his Chex Services' shares in the
name of the joint tenant holder thereof, Phyllis B. Mirviss, subject to
the provisions of this Amendment No 1.
2. ADDITIONAL COVENANT OF BUYER AND SELLING STOCKHOLDERS WITH RESPECT TO
DEBENTURES. To induce the makers of the Debentures to forebear from the
exercise of their option to accelerate the due date of the Debentures
on ninety days notice, the parties agree as follows: the Buyer agrees
that it shall leave the face amount of the Debentures outstanding from
time to time invested in the casino operations of the Corporation. The
Management Stockholder agrees, during any period in which the Buyer is
in compliance with the foregoing, to cause the holders of any of the
Debentures to forbear from exercising their right to accelerate the due
date of the indebtedness evidenced thereby, or if he is unable to
effect such forbearance, to replace the amount thereof pursuant to a
replacement Debenture on terms no less favorable to the Corporation
than the Debenture being replaced, if in Equitex's reasonable judgment
such replacement is advisable.
3. PLEDGE OF EQUITEX COMMON SHARES AS SECURITY FOR AMOUNTS OWED TO THE
CORPORATION. In order to induce Buyer to accept the indebtedness of
various stockholders of the Corporation, as identified on Schedule 4.2
of the Agreement, to the Corporation, those stockholders agree to
pledge certain of the Equitex Common Stock they are entitled to receive
under the Agreement to Equitex, to secure such obligations, pursuant to
Pledge Agreements which they shall execute and deliver, together with
the shares referenced therein, at the Closing.
4. ATM ENTERPRISES, INC. The Management Stockholder hereby represents and
warrants that there is not now, nor was there at any prior time, a
separate entity known as "ATM Enterprises, Inc.," but rather that such
name was in effect an additional "dba" for the Corporation. The
Corporation and the Management Stockholder agree to convey to Buyer any
and all rights as the Corporation may have in the name "ATM
Enterprises, Inc." and to and in such contracts of the Corporation as
may have been entered in that name.
5. Indemnification by Selling Stockholders. To further induce Buyer to
proceed with the Closing of the transaction contemplated by the
Agreement, the Selling Stockholders agree to amend the provisions of
Section 10.1, INDEMNIFICATION, BY MANAGEMENT STOCKHOLDERS, by deleting
the words "Management Stockholders" in the title and in the first line
thereof, and replacing them with the words "Selling Stockholders," and
by adding a new Section 10.6., as follows:
10.6. INDEMNIFICATION HOLDBACK. In order to satisfy any
potential claims for which Buyer would be entitled to
indemnity pursuant to foregoing Section 10.1, the parties
agree that Buyer shall be, and hereby is, authorized to hold
back ten percent (10%) of the Equitex Common Stock from each
Selling Stockholder's portion of the Purchase Price, equaling
in the aggregate 200,000 shares (the "Holdback Shares"), until
December 31, 2002 (the "Holdback Period"). Upon the expiration
of the Holdback Period, Buyer shall deliver to each Selling
Stockholder a certificate representing his or her pro rata
portion of the then remaining Holdback Shares, exclusive only
of: (a) the number of shares which shall have been applied in
satisfaction of claims for which Buyer was entitled to be
indemnified pursuant to the provisions of Section 10.3 hereof
during the Holdback Period; and (b) a sufficient number of
shares to satisfy a pending Indemnity Claim which is the
subject of an ongoing third party dispute under Section 10.3
(b), or is the subject of a pending dispute between the
parties under Section 10.3(c).
6. THE AGREEMENT. All of the other provisions of the Agreement shall
remain in full force in effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Stock Purchase Agreement as of the day and date first set forth above.
Equitex, Inc. The Investing Stockholders
By: /S/ HENRY FONG By: /S/ JAMES P. WELBOURN
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Its: PRESIDENT As agent and attorney-in-fact for
-------------------------- the Stockholders set forth on
Exhibit A to the Agreement
The Management Stockholder
/S/ JAMES P. WELBOURN /S/ PHYLLIS B. MIRVISS
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James P. Welbourn Phyllis B. Mirviss