EXHIBIT 10.1
NOTE ASSIGNMENT
This Note Assignment, dated as of September 22, 2005 (this
"ASSIGNMENT"), is entered into by and between EQUITEX, INC. a Delaware
corporation (the "COMPANY"), and TRANSPORTA, LLC a Colorado corporation (the
"PURCHASER").
RECITAL
On the terms and subject to the conditions set forth herein, Purchaser
is willing to acquire from the Company and the Company is willing to assign to
Purchaser those certain Promissory Notes (the "Notes") in the form attached
hereto as Exhibit A for an aggregate principal amount of $360,000, in exchange
for the issuance, by the Company, of a Promissory Note ( the "Transporta Note")
in the form attached hereto as Exhibit B in the principal amount of $360,000.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and the representations,
warranties and conditions set forth below, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. THE NOTES.
(a) ASSIGNMENT OF THE NOTES. In reliance upon the representations,
warranties and covenants of the parties set forth herein, the Company
agrees to assign and deliver to the Purchaser, and the Purchaser agrees to
acquire from the Company, the Notes, upon delivery to Purchaser of said
Notes.
(b) TERMS OF THE NOTES. The terms and conditions of each Note are set forth
in the form of Notes attached as Exhibit A hereto. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Notes.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to the Purchaser that the statements contained in the following
paragraphs of this Section 2 are all true and correct as of the time of issuance
of the Notes:
(a) ORGANIZATION AND STANDING: ARTICLES AND BYLAWS. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and proposed to be
conducted.
(b) CORPORATE POWER. The Company has all requisite legal and corporate
power to enter into, execute and deliver this Assignment and the Notes.
This Assignment is, and upon issuance the Transporta Note will be, a valid
and binding obligation of the Company, each of the Assignment and the
Transporta Note (upon its issuance) being enforceable against the Company
in accordance with its respective terms.
(c) AUTHORIZATION.
(1) CORPORATE ACTION. All corporate and legal action on the part of the
Company and its officers, directors and stockholders necessary for the
execution and delivery of this Assignment and the Transporta Note, and
the performance of the Company's obligations hereunder and thereunder
have been taken.
3. REPRESENTATIONS AND WARRANTIES BY THE PURCHASER. The Purchaser represents and
warrants to the Company as of the time of issuance of the Transporta Note as
follows:
(a) Investment Intent: Authority. This Assignment is made with the
Purchaser in reliance upon the Purchaser's representation to the Company,
as evidenced by Purchaser's execution of this Assignment, that Purchaser
has the full right, power, authority and capacity to enter into and perform
this Assignment, and this Assignment will constitute a valid and binding
obligation upon the Purchaser, except as the same may be limited by
bankruptcy, insolvency, moratorium and other laws of general application
affecting the enforcement of creditors' rights.
(b) ACKNOWLEDGMENT OF OBLIGATIONS. Purchaser acknowledges and understands
that by executing this Assignment, Purchaser is required to perform all of
the obligations of the Notes and adhere to all of the terms and conditions
on the Notes.
(c) NO TRANSFER. Purchaser covenants that in no event will it dispose of
the Notes without the express written consent of the Company.
(d) KNOWLEDGE AND EXPERIENCE. Purchaser (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of the Purchaser's prospective investment in the
Notes; (ii) has the ability to bear the economic risks of the Purchaser's
prospective investment; (iii) has had all questions which have been asked
by the Purchaser satisfactorily answered by the Company; and (iv) has not
been offered the Notes by any form of advertisement, article, notice or
other communication published in any newspaper, magazine or similar media
or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any such media.
4. MISCELLANEOUS.
(a) WAIVERS AND AMENDMENTS. Any provision of this Assignment may only be
amended, waived or modified upon the written consent of both the Company
and the Purchaser.
(b) GOVERNING LAW. This Assignment and all actions arising out of or in
connection with this Assignment shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard to the
conflicts of law provisions of the State of Colorado or of any other state.
(c) ENTIRE AGREEMENT. This Assignment, together with the form of the Notes
attached hereto, constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and
thereof.
(d) NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent via overnight
courier service or mailed by certified or registered mail, postage prepaid,
return receipt requested, addressed or sent (a) if to the Purchaser, at the
address of the Purchaser set forth below such party's name on the signature
page hereto, or at such other address or number as the Purchaser shall have
furnished to the Company in writing, or (b) if to the Company, at 7315 East
Peakview Avenue, Englewood, Colorad 80111, or at such other address or
number as the Company shall have furnished to the Purchaser in writing.
(e) VALIDITY. If any provision of this Assignment or the Transporta Note
shall be judicially determined to be invalid, unlawful or unenforceable,
the validity, lawfulness and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
(f) COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
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(g) DISCLOSURE. The Company shall not issue any press release or make any
other announcement regarding this Assignment or any of the terms hereof
without the prior written consent of the Purchaser; provided, however, that
the Company may disclose such information concerning the terms of this
Assignment as may be required, in the opinion of the Company's counsel, to
satisfy the disclosure obligations of the Company under Federal or State
Securities laws or Nasdaq Stock Market Markeplace Rules so long as the
Purchaser is given advance notice of such disclosure and a reasonable
advance opportunity to comment upon and modify any such disclosure.
IN WITNESS WHEREOF, the parties have caused this Assignment to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
THE COMPANY:
EQUITEX, INC.
By: /S/ HENRY FONG
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Henry Fong
President
THE PURCHASER:
TRANSPORTA, LLC
By: /S/ MICHAEL S. CASAZZA
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Michael S. Casazza
President
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PROMISSORY NOTE
September 22, 2005
The undersigned, jointly and severally, promise to pay to the order of
TRANSPORTA, LLC at 4647 National Western Drive, Denver, Colorado, 80216 or at
such other place as the holder hereof may designate in writing, the sum of THREE
HUNDRED SIXTY THOUSAND DOLLARS AND NO CENTS ($360,000) payable as follows:
Due on December 9, 2005 with
an interest charge of 10% per annum
Prepayment of this note to date of payment may be made at any time
without penalty.
If the holder deems itself insecure or if default be made in payment of
the whole or any part of any installment at the time when or the place where the
same becomes due and payable as aforesaid, then the entire unpaid balance, shall
at the election of the holder hereof and without notice of said election at once
become due and payable. In event of any such default or acceleration, the
undersigned agrees to pay to the holder hereof reasonable attorney's fees, legal
expenses and lawful collection costs in addition to all other sums due
hereunder.
Presentment, demand, protest, notice of dishonor and extension of time
without notice are hereby waived and the undersigned consent to the release of
any security, or any part thereof, with or without substitution.
Signed:
EQUITEX, INC.
/S/ THOMAS B. OLSON
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Thomas B. Olson, Corporate Secretary