Unassociated Document





Exhibit
10.1

 

REPURCHASE
AGREEMENT

 

This
Repurchase Agreement (this
“Agreement”) is made and entered into as of April 8 2005, by and between
VendingData Corporation, a Nevada corporation (the “Company”), Triage Capital
Management LP, a Delaware limited partnership (“Triage Capital”), Triage Capital
Management B LP, a Delaware limited partnership (“Triage Capital B”), Triage
Offshore Fund Ltd., a Cayman Islands exempt company (“Triage Offshore”),
Periscope Partners LP, a Delaware limited Partnership (“Periscope”), and Leonid
Frenkel, an individual (“Frenkel” and, together with Triage Capital, Triage
Capital B, Triage Offshore and Periscope, the “Triage Parties”).

 

R
E C I T A L S

 

Whereas, the
parties to this Agreement (the “Parties”) desire to enter into this Agreement
for the purposes of having the Company repurchase any and all shares of the
Company’s common stock, $.001 par value (“Common Stock”), owned by the Triage
Parties in exchange for a warrant from the Company (the “Repurchase
Transaction”);

 

Now
Therefore, in
consideration of the mutual covenants, promises, representations, understandings
and agreements hereinafter set forth, the Parties hereto agree the recitals set
forth above are true and accurate and are hereby incorporated in and made a part
of this Agreement, and further covenant and agree as follows:

 

 


	1.  	
      Terms
      and Conditions




 

1.1.  Purchase. In
exchange for the repurchase of an aggregate of Four Hundred Forty-Eight Thousand
Fifty-Three (448,053) shares of Common Stock held by the Triage Parties as
follows, the Company shall issue to each Triage Party a warrant to purchase an
equal number of shares of Common Stock with an exercise price of $.01 per
underlying share:

 

1.1.1.  44,444
shares held by Triage Capital;

 

1.1.2.  41,400
shares held by Triage Capital;

 

1.1.3.  20,800
shares held by Triage Capital B;

 

1.1.4.  88,888
shares held by Triage Capital B;

 

1.1.5.  94,800
shares held by Triage Offshore;

 

1.1.6.  122,221
shares held by Triage Offshore;

 

1.1.7.  10,000
shares Periscope; and

 

1.1.8.  25,500
shares held by Frenkel. 

 

1.2.  Effective
Date; Delivery Obligations. The
effective date for the Repurchase Transaction shall be Friday, April 8, 2005.
Each party hereby agrees to deliver the following as part of the Repurchase
Transaction:

 

1.2.1.  Delivery
Obligations of the Triage Parties.


 

 




















 

 


1.2.1.1.  Stock
certificate issued to Triage Capital for 44,444 shares of common
stock;

 

1.2.1.2.  Stock
certificate issued to Triage Capital B for 88,888 shares of common
stock;

 

1.2.1.3.  Stock
certificate issued to Triage Offshore for 122,221 shares of common
stock;

 

1.2.1.4.  An
irrevocable stock or bond power for the Repurchased Shares in form and substance
reasonably acceptable to the Company and its counsel consistent with Section
1.3.1; and

 

1.2.1.5.  Such
other and further documents and instruments that may be reasonably required by
the Company to complete and facilitate the rescission in accordance with this
Agreement 

 

1.2.2.  Delivery
Obligations of the Company.

 

1.2.2.1.  Warrant
issued in the name of Triage Capital for 85,844 shares of Common
Stock;

 

1.2.2.2.  Warrant
issued in the name of Triage Capital B for 109,688 shares of Common
Stock;

 

1.2.2.3.  Warrant
issued in the name of Triage Offshore for 217,021 shares of Common
Stock;

 

1.2.2.4.  Warrant
issued in the name of Periscope for 10,000 shares of Common Stock;
and

 

1.2.2.5.  Warrant
issued in the name of Frenkel for 25,500 shares of Common Stock. 

 

1.3.  Treasury
Shares. Upon
the closing of the Repurchase Transaction, the Company shall hold the
Repurchased Shares as treasury shares to be re-issued to the Triage Parties,
when and if the Warrants are exercised by the Triage Parties.

 

1.4.  Form
of Warrant. The
warrants to be issued by the Company pursuant to this Agreement shall be in the
form attached hereto as Exhibit
A and, as
provided in the form of warrant, shall may not be exercisable until after April
8, 2006 and until the Triage Parties or their respective affiliated parties are
in compliance with the registration requirements of the Investment Advisor Act
of 1940, as amended; provided, however, subject to certain limitations related
to voting rights, the Triage Parties may be permitted to exercise the warrants
at any time upon a “change of control” involving the Company, as defined in the
form of warrant.

 

 


	2.  	
      Representations,
      Warranties and Covenants




 

2.1.  General
Representations and Warranties. In
order to induce the other party to enter into this Agreement, each Party to this
Agreement represents and warrants to the other party the following:

 

 







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2.1.1.  Authorization;
Binding Effect. Each
party has all of the requisite power and authority to execute and deliver this
Agreement, to the extent applicable, and carry out and perform its obligations
under the terms of this Agreement, if any. To the extent applicable, this
Agreement has been duly authorized, executed and delivered and constitutes the
legal, valid and binding obligation of each party, enforceable in accordance
with its terms. The undersigned representative of each party, to the extent
applicable, is the duly authorized representative of such party and has all
necessary powers and authority to enter into this Agreement on behalf of such
party. 

 

2.1.2.  No
Violation. Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and provisions of this Agreement,
will conflict with, or result in a breach or violation of any of the terms,
conditions or provisions of, or constitute a default under, any governing
document, contract, agreement, mortgage, indenture, lease, instrument, order,
judgment, statute, law, rule or regulation to which each party or any of its
assets is subject, or result in the creation of any security interest, mortgage,
pledge, lien, claim, charge or encumbrance on any properties of such
party.

 

2.1.3.  No
Consent. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, or any
non-governmental third party is required by, or with respect to, each party in
connection with the execution and delivery of this Agreement by such party, the
performance by such party of its obligations hereunder or the consummation by
such party of the transactions contemplated by this Agreement. 

 

2.1.4.  No
Litigation. There is no action, arbitration, suit, proceeding or investigation
pending, or to the knowledge of each party, threatened against such party that
would have a material adverse effect on this Agreement or the ability of such
party to perform its obligations under this Agreement, to the extent applicable.


 

2.1.5.  No
Representations Untrue. No representation or warranty made by each party in this
Agreement, individually and to the extent applicable, contains or will contain
any untrue statement of material fact or omit to state any material fact known
to such party necessary to make any statement, warranty or representation not
misleading to the other party. Each party knows of no material facts or
conditions adversely affecting such party which has not been disclosed in
writing to the other party. 

 

2.2.  Further
Assurances. Each
Party hereby acknowledges that it will use its reasonable best efforts to take,
or cause to be taken, all appropriate action, and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement.

 

2.3.  Mutual
Release. From the
Effective Date, for valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties, on behalf of themselves, their respective successors,
predecessors, parents, affiliates, subsidiaries, divisions, including, but not
limited to their respective officers, directors, stock-holders, managers,
employees, advisors, consultants, insurers, attorneys, heirs, executors,
administrators and authorized representatives, hereby remise, acquit and forever
release each other, and their respective successors, predecessors, parents,
affiliates, subsidiaries, divisions, including, but not limited to their
respective officers, directors, share-holders, managers, employees, advisors,
consultants, insurers, attorneys, heirs, executors, administrators and
authorized representatives from any and all claims, demands, damages, debts,
liabilities, actions, causes of action or suits of whatsoever kind or nature,
presently known or unknown, actual or contingent, asserted or unasserted,
foreseeable or unforeseeable, unanticipated or unsuspected, which any of them
has or may have now or in the future, arising directly or indirectly out of or
involving the Repurchase Transaction, the Repurchased Shares and any other
matter related thereto as they relate thereto. 

 

 







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2.4.  Indemnity;
Agreement
to Defend. Each
Party shall and does hereby indemnify and hold the other party and its managers,
members, partners, trustees, beneficiaries, officers, employees and agents, if
applicable, harmless from and against any loss or expense (including attorneys’
fees and costs of litigation) incurred as a result of any claim, action, demand,
judgment or suit caused or alleged to have been caused by or happening in
connection with the breach of any of such party’s covenants, representations,
warranties, agreements, obligations or undertakings under this Agreement.


 

 


	3.  	
      General
      Provisions




 

3.1.  Remedies
Cumulative. The
remedies of each party shall be cumulative and concurrent and may be pursued
singly, successively or together in the party’s sole discretion and as often as
occasion therefore shall arise.

 

3.2.  Entire
Agreement. This
Agreement, including any exhibits hereto, constitutes the entire agreement
between the parties pertaining to the subject matter hereof, and supersedes any
and all prior or contemporaneous written or oral negotiations, agreements,
representations, and understandings of the parties with respect to such subject
matter.

 

3.3.  Attorneys’
Fees. If
there is any legal action or proceeding, including any mediation or arbitration
proceeding, to enforce or interpret any provision of this Agreement or to
protect or establish any right or remedy of any party hereto, the unsuccessful
party to such action or proceeding, whether such action or proceeding is settled
or prosecuted to final judgment, shall pay to the prevailing party as finally
determined, all costs and expenses, including reasonable attorneys’ fees and
costs, incurred by such prevailing party in such action or proceeding, in
enforcing such judgment, and in connection with any appeal from such
judgment.

 

3.4.  Notice. Any
notice, payment, demand, or communication required or permitted to be given by
any provision of this Agreement shall be in writing and shall be hand delivered,
facsimiled, delivered overnight or mailed, first-class postage prepaid,
certified mail, return receipt requested to the applicable addresses or
facsimile numbers set forth on the signature page hereto. Notice shall be
effective: (1) if hand delivered, when delivered; (2) if facsimiled, on the day
of transmission thereof on a proper facsimile machine with confirmation; (3) if
delivered overnight, on the day of delivery thereof by a reputable overnight
courier service, delivery charges prepaid; and (4) if mailed, on the third
business day after the deposit of such item in the mail, postage prepaid. Any
changes in any of the addresses listed herein shall be made by advance written
notice of ten (10) calendar days to the other party.

 

3.5.  Modification,
Amendment or Waiver. This
Agreement may not be amended, supplemented or otherwise modified, and none of
its terms may be waived, unless such amendment, supplement, modification or
waiver is in an express writing and executed by the party or parties to be bound
thereby. The failure of any party at any time or times to require performance of
any provision hereof shall not affect the right of such party at a later time to
enforce the same, and no waiver of any term or provision hereof on any one
occasion shall be deemed to be a waiver of the same or any other provision
hereof at any subsequent time or times.

 

3.6.  Binding
Effect; Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, assigns and any persons claim-ing rights by,
through or under them; provided, however, that no assignment of any rights or
delegation of any obligations provided for herein may be made by any party to
this Agreement without the prior written consent of the other
parties.

 

 







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3.7.  Construction. 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. 

 

3.8.  Governing
Law.
This
Agreement
shall be governed by and construed in accordance with the laws of the State of
Nevada in effect on the date of this Agreement without resort to any conflict of
laws principles. The parties submit to the exclusive jurisdiction of the state
and federal courts located in Clark County, Nevada for the purposes of any and
all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated thereby. Each party hereby irrevocably waives any
objection to venue and any claim that such a proceeding has been brought in an
inconvenient forum, with respect to any such proceeding that is brought in the
state and federal courts located in Clark County, Nevada.

 

3.9.  Counterparts.
This
Agreement
may be executed at different times and in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Any signature page of this Agreement may be detached from
any counterpart without impairing the legal effect to any signatures thereon,
and may be attached to another counterpart, identical in form thereto, but
having attached to it one or more additional signature pages. Delivery by any
party of facsimiled, counterpart signature pages shall be as binding an
execution and delivery of this Agreement by such party as if the party had
delivered an actual physical original of this Agreement with an ink signature
from such party. Any party delivering this Agreement by telecopy shall promptly
thereafter deliver an executed counterpart original hereof to the other
party.

 

3.10.  No
Third Parties Benefited. This
Agreement is made and entered into for the sole protection and benefit of the
Parties and their respective successors and assigns, and no other person or
persons shall have any right of action hereon.

 

3.11.  Severability. If any
provision of this Agreement, or any portion of any provision, shall be deemed
invalid or unenforceable for any reason whatsoever, such invalidity or
unenforceability shall not affect the enforceability and validity of the
remaining provisions hereof. 

 

3.12.  Survival. The
warranties, representations and covenants of each party contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and shall survive satisfaction of each party’s obligations pursuant to
this Agreement.

 

3.13.  Captions
and Pronouns.
The
captions appearing at the commencement of the sections hereof are descriptive
only and for convenience in reference to this Agreement and in no way whatsoever
define, limit or describe the scope or intent of this Agreement nor in any way
affect this Agreement.

 

In
Witness Whereof, the
parties hereto have duly executed this Agreement as of the date first set forth
above.

 


	
      VendingData
      Corporation,

      a
      Nevada corporation 
	 	
      Address:

	 	 	 	
      6830
      Spencer Street

	
      By:
	 	 	
      Las
      Vegas, Nevada 89119

	 	
      __________________
	 	 
	
      Title:
	
      __________________
	 	
      Telephone:
	
      702-733-7195

	 	 	 	
      Facsimile:
	
      702-733-7197

	 	 	 	 	 



 

 







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      Triage
      Capital Management LP,

      a
      ___________ limited partnership 
	 	
      Address:

	 	 	 	 
	
      By:
	
      _____________________
	 	
      ___________________________

	
      Title:
	
      General
      Partner
	 	
      ___________________________

	 	 	 	 	 
	 	
      By:
	 	 	 
	 	 	
      _____________________
	 	
      Telephone:
	
      __________________

	 	
      Title:
	
      _____________________
	 	
      Facsimile:
	
      __________________

	 	 	 	 	 
	
      Triage
      Capital Management B LP,

      a
      ___________ limited partnership 
	 	
      Address:

	 	 	 	 
	
      By:
	
      _____________________
	 	
      ___________________________

	
      Title:
	
      General
      Partner
	 	
      ___________________________

	 	 	 	 	 
	 	
      By:
	 	 	 
	 	 	
      _____________________
	 	
      Telephone:
	
      __________________

	 	
      Title:
	
      _____________________
	 	
      Facsimile:
	
      __________________

	 	 	 	 	 
	
      Triage
      Offshore Fund, Ltd,

      a
      ______________________ 
	 	
      Address:

	 	 	 	 
	
      By:
	
      _____________________
	 	
      ___________________________

	
      Title:
	
      _____________________
	 	
      ___________________________

	 	 	 	 	 
	 	
      By:
	 	 	 
	 	 	
      _____________________
	 	
      Telephone:
	
      __________________

	 	
      Title:
	
      _____________________
	 	
      Facsimile:
	
      __________________

	 	 	 	 	 
	
      Periscope
      Partners LP,

      a
      ___________ limited partnership
	 	
      Address:

	 	 	 	
      ___________________________

	
      By:
	 	 	
      ___________________________

	 	
      Leonid
      Frenkel
	 	 
	
      Title:
	
      General
      Partner 
	 	
      Telephone:
	
      __________________

	 	 	 	
      Facsimile:
	
      __________________

	 	 	 	 	 
	
      Leonid
      Frenkel
	 	
      Address:

	 	 	 	
      ___________________________

	
      By:
	 	 	
      ___________________________

	 	
      Leonid
      Frenkel, an individual
	 	 
	 	 	 	
      Telephone:
	
      __________________

	 	 	 	
      Facsimile:
	
      __________________




 


 









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