EXHIBIT 23.3
STANDBY PURCHASE AGREEMENT
This Standby Purchase Agreement (this "Agreement") is made and entered
into this 15 day of June 2001 by and between VendingData Corporation, a Nevada
corporation (the "Company"), and Xxxxx X. Xxxxxx, an individual, or a designee
of Xxxxx X. Xxxxxx (collectively, the "Purchaser").
R E C I T A L S
WHEREAS, the board of directors of the Company declared a distribution
of rights to purchase shares of common stock, par value $0.001 ("Common Stock"),
to stockholders of record as of June 15, 2001 (the "Record Date") and to holders
of certain options, warrants and convertible debentures that possess
anti-dilution rights as of the Record Date, where the qualified stockholders and
the qualified holders of options, warrants and convertible debentures are
referred to as "Rightsholders";
WHEREAS, the Company proposes to grant to Rightsholders one right for
each share of Common Stock, or each share of Common Stock underlying the
options, warrants or convertible debentures, as applicable, that Rightsholders
own on the Record Date (the "Rights"), where each Right allows Rightsholders to
purchase two shares of Common Stock for $0.35 per share (the "Exercise Price");
WHEREAS, pursuant to this distribution of the Rights, the Company
proposes to file a registration statement on Form S-3 with the Securities and
Exchange Commission ("the Commission") on approximately the second week of June
2001 (the "Registration Statement") in order to register approximately
26,769,770 shares of Common Stock that may be purchased upon exercise of all of
the Rights (the "Shares");
WHEREAS, the Rights will expire if the Rightsholders have not exercised
the Rights and submitted the necessary documentation and payment for the Shares
before the expiration date, which is thirty (30) days after the effective date
of the Registration Statement (the "Expiration Date");
WHEREAS, in the event that all of the Rightsholders do not exercise
their Rights by the Expiration Date, the Purchaser agrees to exercise the
remaining Rights and purchase the remaining shares of Common Stock underlying
the Rights (the "Standby Shares"); and
WHEREAS, the issuance of the Rights, the offering of the Shares and the
subscription and purchase of the Shares upon the terms described in the
Prospectus (as hereinafter defined), including the purchase of the Standby
Shares pursuant to this Agreement, are herein collectively referred to as the
"Rights Offering."
NOW, THEREFORE, in consideration of the several and mutual promises,
agreements, covenants, understandings, undertakings, representations and
warranties hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
that the Recitals are true and correct and by this reference incorporated herein
as if fully set forth, and the parties further covenant and agree as follows:
1. PURCHASE AND SALE.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth below, the Company agrees to
sell to the Purchaser, and the Purchaser agrees to purchase from the Company at
the Exercise Price all of the Standby Shares, if any, which, as of the
Expiration Date, have not been subscribed for by Rightsholders through the
exercise of the Rights.
2. DELIVERY AND PAYMENT.
Upon receipt of notice from the Company as to the number of the Standby
Shares as of the Expiration Date, the Purchaser agrees to pay for the Standby
Shares on or before the fifth (5th) business day following the Expiration Date,
which date and time may be postponed by written agreement between the Purchaser
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and the Company (such date and time of delivery and payment for the Standby
Shares being herein called the "Closing Date"). The Purchaser agrees that
payment for the Standby Shares shall be delivered to the Company in cash or by
certified or official bank check. The Company agrees to deliver stock
certificates evidencing the Standby Shares to such location as the Purchaser
shall reasonably designate within a reasonable period of time after receiving
payment therefor.
3. REPRESENTATIONS AND WARRANTIES OF COMPANY.
The Company represents and warrants to the Purchaser as follows:
3.01 FILINGS WITH THE COMMISSION. The Company meets the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"),
and plans to file with the Commission the Registration Statement for the
registration of the Shares under the Act. The Company will next file with the
Commission either: (A) prior to effectiveness of such registration statement, a
further amendment to the Registration Statement (including the form of a final
prospectus); or (B) after effectiveness of the Registration Statement, a final
prospectus in accordance with Rule 424(b) (the "Prospectus"). In the case of
clause (B), the Company shall include in the Registration Statement, as amended
at the effective date of the Registration Statement (the "Effective Date"), all
information required by the Act and the rules thereunder to be included in the
Prospectus with respect to the Rights, the Shares and the Rights Offering.
3.02 AUTHORITY. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
and this Agreement has been duly authorized, executed and delivered by the
Company and, assuming due execution and delivery of this Agreement by the
Purchaser, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except: (A) as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law); and (B) as rights to indemnity and contribution hereunder may be limited
by federal or state securities law and/or public policy.
3.03 DUE ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada with
full corporate power and corporate authority under such laws to own, lease and
operate its properties and conduct its business as described in the Registration
Statement and the Prospectus.
3.04 NO VIOLATION. Except as otherwise stated in the Prospectus or
contemplated thereby, the execution and delivery of this Agreement, the issuance
and delivery of the Rights and the Shares, the consummation of the Rights
Offering and the consummation by the Company of the transaction contemplated in
this Agreement, the Registration Statement and the Prospectus are not and will
not result in violation of the Company's articles of incorporation or bylaws.
3.05 NO APPROVALS. Except as otherwise disclosed in the Prospectus, no
authorization, approval, consent or license of any government, governmental
instrumentality or court, domestic or foreign (other than under the Act and the
securities or blue sky laws of the various states), is required for the offer of
the Rights, the offer and sale of the Shares, the consummation of the Rights
Offering as set forth in the Registration Statement and the Prospectus or the
consummation by the Company of the transactions contemplated in this Agreement,
the Registration Statement and the Prospectus.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
The Purchaser represents and warrants to the Company as follows:
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4.01 AUTHORITY. The Purchaser has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement; and this
Agreement has been duly authorized, executed and delivered by the Purchaser and,
assuming due execution and delivery of this Agreement by the Company,
constitutes a legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except: (A) as enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law); and (B)
as rights to indemnity and contribution hereunder may be limited by federal or
state securities laws and/or public policy.
4.02 PURCHASE FOR OWN ACCOUNT. The Purchaser agrees that the Purchaser
does not intend to offer the Common Stock (including, but not limited to, the
Shares) for sale to the public.
4.03 NO FEE OR COMMISSION. Purchaser agrees that the Company is not
required to pay any fee, commission or any other compensation to Purchaser as
compensation for Purchaser's commitment hereunder.
4.04 NO APPROVALS. Except as otherwise disclosed in the Prospectus, no
authorization, approval, consent or license of any government, governmental
instrumentality or court, domestic or foreign (other than under the Act and the
securities or blue sky laws of the various states), is required of the Purchaser
for the consummation of the transactions contemplated in this Agreement.
5. COVENANTS.
The Company agrees with the Purchaser as follows:
5.01 BEST EFFORTS. The Company will use its best efforts to cause the
Registration Statement, and any amendment thereof, to become effective as soon
as practicable. The Company will promptly advise the Purchaser: (A) of any
request by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information; (B) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or threatening of any proceeding for that purpose; (C) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and (D) if any of the
representations and warranties contained in Section 3 hereof becomes inaccurate
in any material respect subsequent to the date hereof.
5.02 RESERVATION OF SHARES. The Company shall at all times reserve and
keep available for issue upon the exercise of the Rights such number of
authorized but unissued shares of Common Stock deliverable upon the exercise of
the Rights as will be sufficient to permit the exercise in full of all Rights
issued.
6. CONDITIONS TO OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser to purchase the Standby Shares shall
be subject to the performance by the Company of its obligations hereunder and to
the following additional conditions:
6.01 TRUE AND CORRECT. The representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date, with the same effect as if made at the Effective Date or
on the Closing Date, as the case may be, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
6.02 NO STOP ORDER. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened.
6.03 ADDITIONAL INFORMATION. Prior to the Closing Date, the Company
shall have furnished to Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
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7. INDEMNIFICATION AND CONTRIBUTION.
7.01 INDEMNIFICATION BY THE COMPANY. The Company agrees that it shall
indemnify and hold harmless the Purchaser from and against any and all loss,
damage, liability, or expense including costs and reasonable attorneys' fees,
that the foregoing may incur by reason of, or in connection with, any
misrepresentation, inaccurate statement or material omission made by the Company
herein, any breach of any its representations and warranties or any failure on
its part to fulfill any of its covenants, agreements or obligations set forth
herein.
7.02 INDEMNIFICATION BY THE PURCHASER. The Purchaser agrees that it
shall indemnify and hold harmless the Company from and against any and all loss,
damage, liability, or expense including costs and reasonable attorneys' fees,
that the foregoing may incur by reason of, or in connection with, any
misrepresentation, inaccurate statement or material omission made by the
Purchaser herein, any breach of any of the Purchaser's representations and
warranties or any failure on the Purchaser's part to fulfill any of the
Purchaser's covenants, agreements or obligations set forth herein.
8. TERMINATION.
Notwithstanding any other provision of this Agreement, this Agreement
shall terminate upon the occurrence of one of the following events: (A) at any
time upon the mutual written agreement of both parties; or (B) by either party,
following a material breach of this Agreement by the other party and the
breaching party's failure to cure such breach within fifteen (15) days of
receiving written notice of such breach.
9. GENERAL PROVISIONS
9.01 ATTORNEYS' FEES. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it may be
entitled.
9.02 SUCCESSORS AND ASSIGNS. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the signatories hereto
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
9.03 GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed under the law of the State of Nevada, disregarding any principles of
conflicts of law that would otherwise provide for the application of the
substantive law of another jurisdiction. The Company and the Purchaser each: (A)
agrees that any legal suit, action or proceeding arising out of or relating to
this Agreement shall be instituted exclusively in Nevada State Court, County of
Xxxxx, or in the United States District Court for the District of Nevada; (B)
waives any objection to the venue of any such suit, action or proceeding and the
right to assert that such forum is not a convenient forum; and (C) irrevocably
consents to the jurisdiction of the Nevada State Court, County of Xxxxx, and the
United States District Court for the District of Nevada in any such suit, action
or proceeding. Each of the foregoing persons further agrees to accept and
acknowledge service of any and all process that may be served in any such suit,
action or proceeding in the Nevada State Court, County of Xxxxx, or in the
United States District Court for the District of Nevada and agrees that service
of process upon it mailed by certified mail to its address shall be deemed in
every respect effective service of process upon it in any such suit, action or
proceeding.
9.04 COUNTERPARTS. This Agreement may be executed at different times
and in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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9.05 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.06 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing, shall be sent by
facsimile to the party to be notified and shall be deemed effectively given upon
personal delivery to the party to be notified, or four days after deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified. Any notice to either party shall be
sent to their respective facsimile numbers and addresses set forth on the
signature pages hereof, or at such other facsimile number or address as a party
may designate by ten (10) days' advance written notice to the other party.
9.07 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof. Any term of this Agreement may be amended,
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the parties.
9.08 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement, and the balance of the Agreement shall be interpreted as if such
provision was so excluded and shall be enforceable in accordance with its terms.
In addition, if any such provision, or any part thereof, is held to be
unenforceable, the parties agree that the court, regulatory agency or other
governmental body making such determination shall have the power to delete or
add specific words or phrases, so that such provision shall then be enforceable
to the fullest extent permitted by law.
9.09 NEUTRAL INTERPRETATION. This Agreement shall be construed in
accordance with its intent and without regard to any presumption or any other
rule requiring construction against the party causing the same to be drafted.
9.10 NO ASSIGNMENT. Unless otherwise provided for herein, this
Agreement may not be assigned or otherwise transferred without the prior written
consent of the other party.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the 15 day of June, 2001.
THE "COMPANY" ADDRESS
VENDINGDATA CORPORATION, 0000 Xxxxxxx Xxxxxx
a Nevada corporation Xxx Xxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Its: Chief Executive Officer and President
THE "PURCHASER" ADDRESS
XXXXX X. XXXXXX, 0000 X.X. Xxxxxx Xxxxx
an individual Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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