Exhibit 10.1
WAIVER
AND AMENDMENT TO WARRANTS
THIS WAIVER AND
AMENDMENT TO WARRANTS (this “Agreement”) is entered
into as of September 7, 2007 (the “Effective Date”), by
and between VendingData Corporation, a Nevada corporation (the
“Company”), on the one hand, and each of Bricoleur
Partners, L.P., Bricoleur Enhanced, L.P., BRIC 6, L.P. and
Bricoleur Offshore Ltd. (collectively, the “Bricoleur
Funds”), on the other hand.
R E C I T A L S
WHEREAS, the Company and the Bricoleur Funds
are parties to that certain 8% Senior Secured Note Purchase
Agreement, dated as of May 1, 2006 and amended as of September 19,
2006 (the “Note Purchase Agreement”), pursuant to
which, among other things, the Bricoleur Funds purchased from the
Company 8% senior secured notes (the “Notes”) in the
principal amount of Thirteen Million Dollars ($13,000,000) and
warrants (“Warrants”) to purchase up to Two Million Six
Hundred Thousand (2,600,000) shares of the Company’s common
stock, par value $0.001 (“Common Stock”), for an
exercise price of $2.00 per share, upon and subject to the terms
and conditions set forth in the Note Purchase Agreement, the Notes
and the Warrants.
WHEREAS, on June 12, 2007, the Company
entered into a Securities Purchase and Product Participation
Agreement with Elixir Group Limited (“Elixir”), a Hong
Kong company, pursuant to which the Company will issue to Elixir
the Company’s equity securities and warrants, subject to
Elixir’s placement on the Company’s behalf of
electronic gaming machines with gaming operators located
Asia. Such Securities Purchase and Product Participation
Agreement, as in effect on the date hereof and without further
amendment, is referred to herein as the “Participation
Agreement.”
WHEREAS, the transactions contemplated by the
Participation Agreement would constitute a “Change in
Control” as defined in the Notes and give the Bricoleur Funds
the option to declare the entire principal amount and all interest
under the Notes immediately due and payable.
WHEREAS, the Company has indicated its
willingness to use its best efforts to close prior to December 31,
2007 one or more financings that would result in gross proceeds to
the Company sufficient for the payment of the Notes in full
under the terms of the
Note Purchase Agreement .
WHEREAS, subject to the terms of this
Agreement, the Company and the Bricoleur Funds have agreed to (a)
amend the Warrants to add net exercise provisions to the Warrants,
(b) effect a net exercise of those portions of the Warrants
representing the right to purchase 2,275,000 shares of Common Stock
at a mutually agreed value of $3.50 per share of the
Company’s Common Stock for purposes of such net exercise,
resulting in the issuance by the Company to the Bricoleur Funds
holding such Warrants of 975,000 shares of Common Stock pursuant to
such net exercise, (c) waive any application of the “Change
in Control” provision of the Notes with respect to the
transactions under the Participation Agreement, and (d) defer until
December 31, 2007 the $825,000 in principal amount currently due to
be repaid by the Company to the Bricoleur Funds pursuant to Section
4.11 of the Note Purchase Agreement as a result of equity issuances
by the Company on June 7, 2007.
A G R E E M E N
T
NOW, THEREFORE, in
consideration of the premises and the mutual covenants, obligations
and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company and
the Bricoleur Funds hereby agree as follows:
1.
Amendment of Warrants . The Warrants are hereby
amended to add a new clause “vii” at the end of Section
2(c) of the Warrants as follows:
“vii.
Net Exercise . Notwithstanding any provisions herein
to the contrary, if the fair market value of one share of Common
Stock is greater than the Exercise Price (at the date of
calculation as set forth below), in lieu of exercising this Warrant
for cash, the Holder may elect to receive shares equal to the value
(as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of
the Company together with the properly endorsed Notice of Exercise
and notice of such election in which event the Company shall issue
to the Holder a number of shares of Common Stock computed using the
following formula:
X =
Y(A-B)
A
Where
X =
the number of
shares of Common Stock to be issued to the Holder
Y
= the number
of shares of Common Stock purchasable under the Warrant or, if only
a portion of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such calculation)
A
= the fair market
value of one share of the Company’s Common Stock (at the date
of such calculation)
B
= Exercise
Price (as adjusted to the date of such calculation)
For purposes of
the above calculation, fair market value of one share of Common
Stock shall be either (a) the price mutually agreed by the Company
and the Holder, or (b) if the Company and the Holder do not agree
on such price, the average of the closing bid and asked prices of
the Common Stock quoted in the Over-The-Counter Market Summary or
the last reported sale price of the Common Stock or the closing
price quoted on the NASDAQ Global Market or on any exchange on
which the Common Stock is listed, whichever is applicable, as
published in the Western Edition of the Wall Street Journal for the
ten (10) trading days prior to the date of determination of fair
market value.”
2.
Amendment of Notice of Exercise . The Company hereby
agrees to amend the Notice of Exercise attached to the Warrants to
allow for exercise by means of the net exercise provisions added to
the Warrants by this Agreement.
2
3.
Net Exercise of Portions of the Warrants . Bricoleur
Offshore Ltd. and Bricoleur Enhanced, L.P. currently hold Warrants
to purchase One Million Four Hundred Thousand (1,400,000) and One
Million Two Hundred Thousand (1,200,000) shares of Common Stock,
respectively. Of those Warrants, Bricoleur Offshore
Ltd.’s Warrant to purchase One Million Two Hundred
Twenty-Five Thousand (1,225,000) shares of Common Stock and
Bricoleur Enhanced, L.P.’s Warrant to purchase One Million
Fifty Thousand (1,050,000) shares of Common Stock are
non-cancelable a
