EXHIBIT 2.2
AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment") is made and entered into as of
February 4, 2002, by and among ACSC Acquisitions, Inc., a Nevada corporation
("Buyer"), Advanced Casino Systems Corporation, a Delaware corporation (the
"Company"), PPI Corporation, a New Jersey corporation and debtor-in-possession
under Chapter 11 Case No. 01-11729, jointly administrated, in the United States
Bankruptcy Court for the District of Delaware ("Seller"), Greate Bay Casino
Corporation, a Delaware corporation and debtor-in-possession under Chapter 11
Case No. 01-11729, jointly administrated, in the United States Bankruptcy Court
for the District of Delaware ("Greate Bay"). HWCC-Holdings, Inc., a Texas
corporation ("HWCC"), agrees to complete and perform its obligations hereunder
and acknowledges and consents to the terms and conditions of this Amendment and
the consummation of the transactions contemplated hereby by its signature on the
signature page hereof.
RECITALS
WHEREAS, Buyer, the Company, Seller and Greate Bay are parties and HWCC
agreed to complete and perform its obligations under and acknowledged and
consented to that certain Stock Purchase Agreement, dated as of December 19,
2001 (the "Agreement");
WHEREAS, Section 15.11 of the Agreement provides that the Agreement may
be amended by a written instrument specifically designating the terms and
provisions so modified if signed by Buyer, the Company, Seller, Greate Bay and
HWCC; and
WHEREAS, each of Buyer, the Company, Seller, Greate Bay and HWCC has
determined that it is desirable to amend the Agreement as set forth in this
Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer, the Company, Seller, Greate Bay and HWCC hereby agree as
follows:
1. DEFINED TERMS. All capitalized terms used, but not defined, in this
Amendment shall have the meanings given to such terms in the Agreement.
2. PURCHASE PRICE ADJUSTMENT.
(a) Section 1.4(a) of the Agreement shall be deleted and replaced in its
entirety with the following:
"(a) On or before the later of (i) ten business days after the
Closing Date or (ii) three business days after the Company delivers to
Buyer the Closing Balance Sheet, a
representative of Buyer and a representative of Greate Bay and HWCC
shall jointly prepare and deliver to the Escrow Agent a mutually
agreed upon schedule that sets forth (i) the Company's Actual Working
Capital as of the Closing Date and (ii) the Post Closing Adjustment, if
any, to the Purchase Price. If the Company's Actual Working Capital as
of the Closing Date is less than $5,100,000, then the Purchase Price
shall be reduced by the difference between $5,100,000 and the Actual
Working Capital. Any such adjustment to the Purchase Price pursuant to
this Section 1.4(a) shall be referred to herein as the "POST CLOSING
ADJUSTMENT." A Post Closing Adjustment that results in a reduction of
the Purchase Price shall correspondingly reduce the Secondary Escrow
Funds to be distributed to Seller, or HWCC as Seller's designee, under
the Secondary Escrow Agreement."
(b) Section 1.4(e) of the Agreement shall be deleted and replaced in its
entirety with the following:
"(e) The Seller, Buyer, Company, Greate Bay and HWCC shall use
their reasonable best efforts to cause the Escrow Agent to distribute
the Secondary Escrow Funds held under the Secondary Escrow Agreement to
the parties in accordance with the final Post Closing Adjustment as
determined pursuant to this Section 1.4 as soon as practicable after its
final determination."
3. BANKRUPTCY PROCEDURES. Section 10.3(d) of the Agreement shall be
deleted and replaced in its entirety with the following:
"(d) The parties recognize that, notwithstanding this Agreement,
the Seller and Greate Bay, in accordance with the Sales Procedures
Order, may entertain offers for the Shares ("COMPETING BIDS") from other
persons ("COMPETING BIDDERS"). In the event of any consideration of such
offers, whether in the form of an auction process or otherwise, the Sale
Procedures Order shall provide that:
(i) no Competing Bid will be accepted or approved by the
Debtors unless it is made pursuant to terms and conditions substantially
similar to those contained in this Agreement (except with respect to the
Purchase Price and the identity of the proposed purchaser). Any proposed
changes shall be marked so as to show all modifications to the Agreement
and shall be subject to subsequent Court approval upon application by
the Debtor or the person making the Competing Bid. No Competing Bid
shall be considered unless it provides for aggregate consideration
having a value equal to at least the sum of (A) the Purchase Price, plus
(B) the Break-Up Fee, if any is required to be paid on account of the
competing bid, plus (C) the Expense Reimbursement, plus (D) $1.00, and,
if there is a bidding process, the next Competing Bid shall be in an
increment of at least $200,000 net consideration to the Debtors and each
successive Competing Bid thereafter shall be in increments of at least
$100,000 net consideration to the Debtors in each round of bidding. Any
person who makes a Competing Bid but who contends Debtors have not,
prior to the bid deadline, provided access to all information reasonably
required by such person to complete their due diligence, may submit
their bid with a due diligence contingency of a reasonable duration.
Such person may participate in the auction and appear at the March 6,
2002
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sale hearing and be heard on the issue of its bid being the highest
and best bid notwithstanding the due diligence contingency. If the Court
finds that Debtors have not provided information that such person
reasonably required to complete its due diligence, then the Court may
consider such person's bid notwithstanding the due diligence
contingency.
(ii) no Competing Bid will be considered unless the
Debtors determine that the Competing Bidder has the capacity to complete
the purchase of the Shares and that the Competing Bid is not subject to
any financing, regulatory or due diligence contingency; and
(iii) copies of all Competing Bids, motions, objections or
any other bankruptcy pleadings relating to the sale of the Shares shall
be delivered to Buyer by the Debtors within one business day of their
receipt by the Debtors."
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4. EXHIBIT F. The Sales Procedure Order attached as Exhibit F to the
Agreement shall be deleted and replaced in its entirety with the ORDER
CONTINUING HEARING ON DEBTORS' SALE MOTION AND APPROVING(i) BREAK-UP FEE,
OVERBID PROTECTIONS, AND CERTAIN OTHER BID PROCEDURES IN CONNECTION WITH
PROPOSED SALE OF COMMON STOCK OF NON-DEBTOR SUBSIDIARY, ADVANCED CASINO SYSTEMS
CORPORATION, AND (ii) FORM AND MANNER OF NOTICE RELATED TO SALE attached to this
Amendment as Exhibit A and shall replace Exhibit F of the Agreement and
constitute the Sales Procedure Order for all purposes under the Agreement.
5. BANKRUPTCY COURT APPROVAL. Greate Bay's and Seller's obligations
hereunder and under the Agreement are subject to Bankruptcy Court approval.
6. ENTIRE AGREEMENT. This Amendment and the Agreement, together with the
exhibits and schedules thereto, shall constitute the entire understanding and
agreement among Buyer, the Company, Seller, Greate Bay and HWCC with regard to
the subjects hereof and thereof.
7. NO OTHER MODIFICATION. Except as set forth in this Amendment, the
terms and conditions of the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first written above.
ACSC ACQUISITIONS, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Secretary
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ADVANCED CASINO SYSTEMS CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Vice President
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PPI CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Vice President
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GREATE BAY CASINO CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Chairman and CEO
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HWCC-HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Exec. VP and General Counsel
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