AGREEMENT By and Between Tidel Technologies, Inc., Tidel Engineering, L.P. and Laurus Master Fund, Ltd.
Exhibit
10.2
By
and Between
Tidel
Technologies, Inc.,
Tidel
Engineering, L.P.
and
Laurus
Master Fund, Ltd.
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Dated
as of June 9, 2006
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This
Agreement (this “Agreement”) is made and entered into as of June 9, 2006 between
Tidel Technologies, Inc., a Delaware corporation (the “Company”), Tidel
Engineering, L.P. (“Engineering”) and Laurus Master Fund, Ltd., a Cayman Islands
company (“Laurus”).
W
I T N E S
S E T H :
WHEREAS,
the Company and Engineering have sold substantially all of the assets of
the
Company’s automated teller machine business to NCR EasyPoint LLC (the “ATM
Sale”) pursuant to the Asset Purchase Agreement, dated as of February 19, 2005,
as amended;
WHEREAS,
the Company and Engineering have entered into an Asset Purchase Agreement
with
Sentinel Operating, L.P. (“Sentinel”) dated as of January 12, 2006, to sell the
Company’s cash security business (the “TACC Sale”), as amended and restated
pursuant to the Amended and Restated Asset Purchase Agreement dated as of
June
9, 2006 (the “Amended APA”) and attached hereto as Exhibit A;
WHEREAS,
the proposed TACC Sale requires the approval of the holders of a majority
of the
outstanding shares of the Company’s common stock, $.01 par value per share (the
“Common Stock”);
WHEREAS,
the Company has entered into a Stock Redemption Agreement with Laurus dated
as
of January 12, 2006, as amended as of February 28, 2006 and the date hereof
(as
amended, the “Redemption Agreement”) pursuant to which the Company has agreed,
among other things, to redeem all shares of Common Stock held by Laurus,
immediately following the closing of the TACC Sale;
WHEREAS,
the Company has entered into an Exercise and Conversion Agreement with Laurus,
Sentinel and Sentinel Technologies, Inc., dated as of January 12, 2006, as
amended as of February 28, 2006 and the date hereof (as amended, the “Exercise
Agreement”) pursuant to which the Company has agreed, among other things, that
at any time on or after September 30, 2006, Laurus is authorized to apply
the
Collateral Deposit (as defined therein) to the payment of the Redemption
Amount
(as defined therein):
WHEREAS,
the Company has entered into an Agreement Regarding NCR Transaction and Other
Asset Sales with Laurus, dated as of November 26, 2004 (the “Sale Agreement”),
pursuant to which the Company agreed, among other things, to make certain
payments to Laurus upon the consummation of the ATM Sale and the TACC
Sale;
WHEREAS,
the Company and Laurus desire to resolve certain outstanding matters between
them as provided herein to avoid uncertainty, to expedite the contemplated
transactions and to reduce costs and expenses for the benefit of all parties
following the closing of the TACC Sale.
NOW,
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section
1. Amendment
of Sale Agreement, and related matters.
(a) Upon
the
closing of the TACC Sale, the Company shall pay to Laurus $8,508,963 in
immediately available funds (the “Sale Fee”) in full satisfaction of all amounts
due and owing to Laurus under the Sale Agreement, and following payment of
such
amount the Sale Agreement shall terminate and be of no further force and
effect.
(b) Upon
the
payment of the Sale Fee by the Company to Laurus, the Reaffirmation,
Ratification and Confirmation Agreement dated January 12, 2006 between the
Company and Laurus shall terminate and be of no further force and
effect.
(c) Following
the payment of the Sale Fee by the Company to Laurus and the performance
by the
Company of all of its obligations (financial and otherwise) under and pursuant
to the Redemption Agreement, all remaining amounts held under the Cash
Collateral Deposit Letter (the “Cash Collateral Deposit Letter”) dated January
12, 2006 among Laurus, the Company, Engineering, Tidel Services, Inc., Tidel
Cash Systems, Inc. and AnyCard International, Inc. shall be paid to the Company
by Laurus.
Section
2. Termination
of Obligations.
Following
the closing of the TACC Sale, the payment of the Sale Fee by the Company
to
Laurus and the performance by the Company of all of its obligations (financial
and otherwise) under and pursuant to the Redemption Agreement, the parties
agree
that neither the Company nor Engineering or any of their subsidiaries shall
have
any further obligations due to, owing to or to be performed by them for Laurus,
all warrants to purchase the Common Stock held by Laurus shall terminate
and be
of no further force and effect and all liens, claims, encumbrances and security
interests held by Laurus, or its transferees or assignees, in the Company’s and
Engineering’s, and each of their subsidiaries’, assets shall terminate and be of
no further force and effect.
Section
3. Releases.
(a) Release
by Laurus.
Upon
and subject to the closing of the TACC Sale, the payment of the Sale Fee
by the
Company to Laurus and the performance by the Company of all of its obligations
(financial and otherwise) under and pursuant to the Redemption Agreement,
Laurus, individually and on behalf of its officers, directors, affiliates,
successors and assigns (together, the “Laurus Releasors”), hereby remises,
releases and forever discharges the Company and Engineering, and each of
their
predecessors, parents, subsidiaries, affiliates, and the past, present and
future officers, directors, partners, members, employees, agents, consultants,
representatives, attorneys, and insurers of any of the foregoing, together
with
all successors and assigns of any of the foregoing (collectively, the “Tidel
Releasees”) of and from all claims, demands, actions, causes of action, rights
of action, debts, dues, bonds, bills, judgments, contracts, controversies,
covenants, obligations, agreements, damages, penalties, interest, fees,
expenses, costs, remedies, accounts, reckonings, extents, responsibilities,
liabilities, suits, and proceedings of whatsoever kind, nature, or description,
direct or indirect, vested or contingent, known or unknown, suspected or
unsuspected, in contract, tort, law, equity, or otherwise, under the laws
of any
jurisdiction, that Laurus Releasors ever had, or now have, for, upon, or
by
reason of any matter, cause or thing whatsoever from the beginning of the
world
to the date of this Agreement; provided,
however,
that
the foregoing release shall not extend to (i) any claims arising from the
breach
of this Agreement by any of the Tidel Releasees
or (ii)
any rights the Laurus Releasors may have pursuant to the collateral assignment
made by Sentinel to Laurus in respect of the Amended APA.
(b) Release
by the Company and Engineering.
Upon
and subject to the closing of the TACC Sale, the payment of the Sale Fee
by the
Company to Laurus and the performance by the Company of all of its obligations
(financial and otherwise) under and pursuant to the Redemption Agreement,
the
Company and Engineering, individually and on behalf of each of its officers,
directors, affiliates, successors and assigns (together, the “Tidel Releasors”),
hereby remises, releases and forever discharges Laurus, and its predecessors,
parents, subsidiaries, affiliates, and the past, present and future officers,
directors, partners, members, employees, agents, consultants, representatives,
attorneys, and insurers of any of the foregoing, together with all successors
and assigns of any of the foregoing (collectively, the “Laurus Releasees”) of
and from all claims, demands, actions, causes of action, rights of action,
debts, dues, bonds, bills, judgments, contracts, controversies, covenants,
obligations, agreements, damages, penalties, interest, fees, expenses, costs,
remedies, accounts, reckonings, extents, responsibilities, liabilities, suits,
and proceedings of whatsoever kind, nature, or description, direct or indirect,
vested or contingent, known or unknown, suspected or unsuspected, in contract,
tort, law, equity, or otherwise, under the laws of any jurisdiction, that
Tidel
Releasors, ever had or now have, for, upon, or by reason of any matter, cause
or
thing whatsoever from the beginning of the world to the date of this Agreement;
provided, however, the foregoing release shall not extend to any claims arising
from the breach of this Agreement by any of the Laurus Releasees.
Section
4. Miscellaneous.
(a) Expenses.
Each
party shall pay its own costs and expenses incurred in connection with this
Agreement.
(b) Notices.
All
notices, requests, demands and other communications which are required or
may be
given under this Agreement shall be in writing and shall be deemed to have
been
duly given when delivered personally or by facsimile transmission, in either
case with receipt acknowledged, or five days after being sent by registered
or
certified mail, return receipt requested, postage prepaid, or one day after
being sent by nationally-recognized overnight carrier:
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(i)
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If
to the Company to:
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Tidel
Technologies, Inc.
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0000
Xxxxxxxx Xxxxx, Xxxxx 000
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Xxxxxxx,
Xxxxx 00000
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Attention:
Chairman of the Board
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with
a copy to:
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Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
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Park
Avenue Tower
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00
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Xxxx X. Xxxxxxxx, Esq.
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(ii)
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If
to the Seller, to:
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Laurus
Master Fund, Ltd.
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M
& C
Corporate Services Limited
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X.X.
Xxx 000
G.T., Xxxxxx
House
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South
Church Street
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Xxxxxx
Town
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Grand
Cayman, Cayman Islands
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Attention:
Authorized Person
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with
a copy to:
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Loeb
& Loeb LLP
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000
Xxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxx Xxxxxxxx, Esq.
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and
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Xxxxxxxxxx
Xxxxxxx PC
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0000
Xxxxxx xx xxx Xxxxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxxx X. Xxxxxxx, Esq.
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or
to
such other address as any party shall have specified by notice in writing
to the
other in compliance with this Section 4.
(c) Amendment.
Laurus
hereby consents to the execution and performance of the Amended
APA.
(d) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto with
respect
to the subject matter hereof and supersedes all prior agreements,
representations and understandings among the parties hereto.
(e) Binding
Effect, Benefits, Assignments.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns; nothing in this Agreement,
expressed or implied, is intended to confer on any other person, other than
the
parties hereto or their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement. This Agreement
may not be assigned by the Company without the prior written consent of Laurus.
This Agreement may only be assigned by Laurus together with and as a part
of the
assignment of the Sale Agreement and all of the Laurus Documents (as defined
in
the Cash Collateral Deposit Letter).
(f)
Applicable
Law.
This
Agreement and the legal relations between the parties hereto shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
(g) Jurisdiction.
Unless
otherwise provided herein, the parties hereto agree to submit to the
jurisdiction of any Federal or state court located in the State of New
York,
County
of New York,
for the
purpose of resolving any action or claim arising out of the performance of
the
provisions of this Agreement.
(h) Headings.
The
headings and captions in this Agreement are included for purposes of convenience
only and shall not affect the construction or interpretation of any of its
provisions.
(i)
Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(j)
Further
Assurances.
At, and
from time to time after the date hereof, at the request and expense of the
Company
but
without further consideration, Seller will execute and deliver such other
instruments of conveyance, assignment, transfer, and delivery and take such
other action as the Company reasonably may request in order more effectively
to
convey, transfer, assign and deliver to the Company, and to place the Company
in
possession and control of the Shares.
(j)
Agreement
Void Ab Initio.
If (i)
the purchase price (as adjusted) for the TACC Sale is less then the amount
set
forth in the Amended APA, (ii) the Amended APA is amended in any material
respect, or (iii) the TACC Sale has not closed on or before September 30,
2006,
then this Agreement shall be deemed Void Ab Initio and shall be of no further
force and effect.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year hereinabove first set forth.
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TIDEL
TECHNOLOGIES, INC.
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By:
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/s/
Xxxxxx X. Xxxx
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Name:
Xxxxxxx X. Xxxx
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Title:
Director
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TIDEL
ENGINEERING, L.P.
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By:
Tidel Cash Systems, Inc.,
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| its managing general partner | ||
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By:
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/s/
Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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Title:
Vice President and Secretary
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LAURUS
MASTER FUND, LTD.
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By:
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/s/
Xxxxxx Grin
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Name:
Xxxxxx Grin
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Title:
Director
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