1
EXHIBIT 10.26
STOCK PURCHASE AGREEMENT
August 5, 1996
Multimedia Games, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Gentlemen:
Each of the persons whose signature appears on the signature page hereof
under the caption "Purchasers" (each a "Purchaser" and collectively, the
"Purchasers"), desire to subscribe for and purchase the number of shares of
Common Stock, $.01 par value, of Multimedia Games, Inc., a Texas corporation
(the "Company") set forth opposite the signature of such Purchaser on the
signature page to this Agreement at a purchase price of $2.75 per Share. The
number of shares so subscribed for are hereinafter called the "Purchased
Shares."
The terms and conditions of the purchase and sale of the Purchased
Shares are set forth below. These include representations and warranties by
the parties which are being relied upon in connection with the transactions
contemplated herein, including representations and warranties by the Purchaser
necessary to enable the Company to satisfy its obligations under applicable
Federal and State securities laws.
NEITHER THIS AGREEMENT AND THE EXHIBITS ANNEXED HERETO (COLLECTIVELY, THE
"OFFERING MATERIALS") NOR THE SECURITIES OFFERED HEREBY HAVE BEEN FILED OR
REGISTERED WITH OR APPROVED BY THE SEC NOR HAS THE SEC PASSED UPON THE ACCURACY
OR ADEQUACY OF THE OFFERING MATERIALS. NO STATE SECURITIES LAW ADMINISTRATOR
HAS PASSED ON OR ENDORSED THE
-1-
2
MERITS OF THIS OFFERING OR THE ACCURACY OR THE ADEQUACY OF THE OFFERING
MATERIALS. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
THE OFFERING MATERIALS HAVE NOT BEEN REVIEWED BY THE ATTORNEY GENERAL PRIOR TO
ITS ISSUANCE AND USE. THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT
PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
THE OFFERING MATERIALS DO NOT CONTAIN AN UNTRUE STATEMENT OF A MATERIAL FACT OR
OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS MADE IN LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. THEY CONTAIN A
FAIR SUMMARY OF THE MATERIAL TERMS AND DOCUMENTS PURPORTED TO BE SUMMARIZED
HEREIN.
The Purchaser acknowledges having received from the Company the
following:
A. The Company's Annual Report on Form 10-KSB for the fiscal
year ended September 30, 1995, attached hereto as Exhibit A.
B. The Company's Quarterly Report on Form 10-QSB for the six
months ended March 31, 1996, attached hereto as Exhibit B.
C. The Company's press release dated July 2, 1996, issued in
connection with a recent event, attached hereto as Exhibit C.
D. The form of Registration Rights Agreement attached hereto
as Exhibit D.
E. The form of Note to be issued by the Purchaser as
consideration for the Purchased Shares, attached hereto as Exhibit E.
Considering the foregoing, and in consideration of the mutual covenants
and agreements of the parties herein contained, the Purchaser and the Company
do hereby agree as follows:
-2-
3
1. Sale and Purchase of Purchased Shares. (a) Subject to the terms
and conditions hereof:
(i) the Company will, in reliance upon the representations and
warranties of the Purchaser contained herein, issue and sell the
Purchased Shares to the Purchaser for an aggregate purchase price (the
"Purchase Price") of $2.75 multiplied by the number of Purchased Shares;
and
(ii) the Purchaser will, in reliance upon the representations
and warranties of the Company contained herein, purchase the Purchased
Shares from the Company for the Purchase Price.
(b) The Purchase Price shall be paid by the Purchaser delivering to the
Company the promissory note of the Purchaser in substantially the form attached
hereto as Exhibit E (the "Note") in the principal amount equal to the Purchase
Price.
2. Closing and Closing Date. The Closing shall be at 10:00 A.M.,
local New York time, on the third business day following the satisfaction of
all of the conditions set forth in Section 5 of this Agreement (unless waived
by the party in whose favor the condition runs), or at such other time and date
as is mutually agreed upon between the Purchaser and the Company (the "Closing
Date"). The Closing hereunder shall take place by facsimile (original
execution copies to follow) or by such other means as the parties shall
mutually agree. At the Closing on the Closing Date, the Company will deliver
to the Purchaser the Purchased Shares against payment of the Purchase Price
thereof by delivery of the Note in the principal amount of the Purchase Price.
The Purchased Shares to be delivered to the Purchaser at the Closing will be
registered in the name of the Purchaser as set forth on the signature page of
this Agreement.
-3-
4
3. Representations and Warranties by the Company. The Company
represents and warrants to the Purchaser that, except as otherwise set forth in
Schedule A hereto:
(a) Organization, Existence, Etc. The Company is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Texas, and has all requisite corporate power and authority to carry on its
business as now conducted, to enter into this Agreement, to issue and sell the
Purchased Shares as contemplated herein and to carry out the other terms and
conditions of this Agreement. Each subsidiary of the Company is a corporation
duly organized and validly existing and in good standing under the laws of the
State of Delaware, and each has all requisite corporate power and authority to
carry on its business as now conducted. The Company and each subsidiary of the
Company is duly qualified to do business and is in good standing in every
jurisdiction in which the ownership, leasing, licensing or use of its property
and assets or the conduct of its business makes such qualification necessary,
except where the failure to be so qualified would not have a material adverse
effect on the Company's business. The Company and each subsidiary has all
consents, authorizations, approvals, orders, permits, licenses and the like
(collectively, the "Permits") from, and has made all filings with, all federal,
state, Indian and local authorities, necessary to own, lease, license and use
its properties and assets and to conduct its business as presently conducted.
All such Permits are in full force and effect and the Company is in compliance
with the terms and conditions thereof and is not in breach or default
thereunder.
(b) Financial Statements.
(i) Since September 30, 1995, the Company has filed all forms,
reports, statements and other documents required to be filed with the
Securities and Exchange Commission (the "SEC"), including, without
limitation, all Annual Reports on Form lO-KSB, all Quarterly Reports on
Form lO-QSB, all Current Reports on Form 8-K, and all required
amendments and supplements thereto
-4-
5
(collectively the "Company Reports"). The Company Reports, including all
Company Reports filed after the date hereof and prior to the Closing
Date, (A) were or will be prepared in all material respects in
accordance with the requirements of applicable Law (including the Act,
the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC thereunder applicable to such Company Reports),
and (B) did not at the time they were filed, or will not at the time
they are filed, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ii) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Company
Reports filed prior to or after the date hereof (A) have been or will be
prepared in accordance with the published rules and regulations of the
SEC and generally accepted accounting principles applied on a consistent
basis throughout the periods involved and (B) fairly present or will
fairly present the consolidated financial position of the Company and
its subsidiaries, as the case may be, as of the respective dates thereof
and the consolidated results of operations, changes in stockholders'
equity (deficit) and cash flows for the periods indicated.
(c) No Material Adverse Change. Since the date of the most recent
balance sheet contained in the Company's report on Form 10-QSB for the period
ended March 31, 1996 (the "March 31 Report"), there has not been any change
which has had a material adverse effect on the business or financial condition
of the Company.
(d) Litigation. There is no action, suit, or arbitration proceeding
pending, or to the knowledge of the officers of the Company threatened, against
the Company or its subsidiaries before any court or administrative agency which
is reasonably expected to result in any material adverse change in the business
or condition
-5-
6
(financial or other) of the Company or its subsidiaries or which questions the
validity of any action taken or to be taken pursuant to or in connection with
this Agreement or the Purchased Shares.
(e) Compliance with Instruments, Etc. Neither the Company nor any
subsidiary is (A) in default under any indenture or material contract or
agreement to which it is a party (and the other contract party or parties are
not in breach or default thereunder), (B) in violation of its charter or by-
laws, or to its knowledge, of any applicable law, (C) in default with respect
to any order, writ, injunction or decree of any court, or (D) in default under
any order, license, regulation or demand of any governmental agency, in each
case where such default or violation might have consequences which would
materially and adversely affect the business or property of the Company and its
subsidiaries (taken as a whole).
(f) Authorization of Agreements. The execution, delivery and
performance of this Agreement by the Company, and the consummation of the
transactions contemplated herein, including the execution, delivery and
performance of the Registration Rights Agreement and the issuance of the
Shares, have been duly authorized by all necessary corporate action. Each of
this Agreement and the Registration Rights Agreement (when executed and
delivered) constitutes the valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms. The
Shares (when issued and paid for upon delivery of the Note pursuant to the
terms of this Agreement), will be duly authorized, validly issued, fully paid
and nonassessable.
(g) Use of Proceeds. The Company will use the proceeds of the sale of
the Shares for general working capital purposes.
(h) Capitalization; Indebtedness. The authorized capital stock of the
Company consists of (A) 10,000,000 shares of Common Stock, of which 2,734,200
shares of Common Stock are issued and outstanding, 1,507,560 shares of Common
Stock are reserved for issuance upon the exercise of outstanding rights,
options and warrants as described in Part I of Schedule B hereto, and 4,526,366
are reserved for issuance
-6-
7
pursuant to commitments and expected commitments described in Part II of
Schedule B hereto, and (B) 2,000,000 shares of Preferred Stock, $10 par value,
of which 134,318 shares of Series A Preferred Stock are issued and outstanding.
Except as set forth in Schedule B, there are outstanding no options, warrants
or other rights to subscribe for or acquire any capital stock of the Company or
its subsidiaries. The Company and its subsidiaries have outstanding no
indebtedness for borrowed money other than as set forth in the consolidated
balance sheet as at March 31, 1996 referred to in the March 31 Report or
incurred since such date in the ordinary course of business ($932,720
outstanding at July 19, 1996). Of such shares of issued and outstanding Common
Stock (2,734,200) and shares of Common Stock reserved for issuance upon the
exercise of outstanding rights, options and warrants described in Part I of
Schedule B (1,507,560), 1,642,557 shares have rights that entitle the holder
thereof to include such shares in a Registration Statement filed by the Company
under the Act as described in Part III of Schedule B hereto. The Common Stock
is properly listed on the small cap market of the NASDAQ Stock Market
("NASDAQ") under the symbol MGAM and the Company has received no notice from
NASDAQ that questions the validity of such listing or the eligibility of the
Company to maintain such listing.
(i) Governmental Consent, Etc. No consent, approval or authorization
of, or registration, declaration or filing with, any federal, state, Indian or
local governmental authority is required in connection with the execution and
delivery of this Agreement and none shall be required in connection with the
offer, issue, sale or delivery to the Purchaser of the Purchased Shares or the
carrying out of any other transaction contemplated hereby or thereby.
4. Representations and Warranties by Purchaser. The Purchaser
represents and warrants to the Company that:
(a) Authorization. The Purchaser is duly authorized to enter into this
Agreement and to carry out the terms and conditions of this Agreement.
-7-
8
(b) Accredited Investor. The Purchaser is an Accredited Investor.
(c) Purchase Entirely for Own Account. The Shares to be purchased by
the Purchaser will be acquired for investment for the Purchaser's own account,
not as a nominee or agent, and not with a view to the Purchaser's distribution
of any part thereof; and the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. The
Purchaser does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Purchased Shares.
(d) Reliance Upon Investors' Representations. The Purchaser
understands that the Purchased Shares have not been registered under the
Securities Act on the basis that the sale provided for in this Agreement is
exempt from registration under the Securities Act pursuant to Section 4(2)
thereof and that the Company's reliance on such exemption is predicated on the
Purchaser's representations set forth herein.
(e) Receipt of Information. The Purchaser believes it has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Purchased Shares. The Purchaser further represents that it has
had an opportunity to ask questions and receive answers from the Company and
its officers regarding the terms and conditions of the offering of the
Purchased Shares and the business, properties, prospects, and financial
condition of the Company and to obtain additional information necessary to
verify the accuracy of any information furnished to the Purchaser or to which
the Purchaser otherwise had access. Except as contained in this Agreement and
in the information expressly referred to in this Agreement as having been
delivered to the Purchaser, no representations or warranties have been made to
the Purchaser by the Company or any agent, employee or affiliate of the
Company; and in entering into this transaction the Purchaser is not relying on
any
-8-
9
information other than that contained in this Agreement, or delivered to the
Purchaser pursuant to this Agreement, and the results of the Purchaser's own
independent investigation.
(f) Restricted Securities. The Purchaser understands that it must bear
the economic risk of an investment in the Shares for an indefinite period of
time and that there is a thinly traded public market for the Common Stock. The
Purchaser understands that the Shares may not be sold, transferred, or
otherwise disposed of without registration under the Securities Act or an
exemption therefrom, and that in the absence of an effective registration
statement covering the Shares or an available exemption from registration, the
Shares must be held indefinitely.
(g) Legends. Each certificate evidencing the Shares shall be endorsed
with a legend in substantially the following form, and the Purchaser covenants
that, except to the extent waived by the Company, the Purchaser shall not
transfer the Shares represented by any such certificate without complying with
the restrictions on transfer described in the legend endorsed on such
certificate:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF
TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER
UNLESS SUCH TRANSFER IS MADE IN CONNECTION WITH AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH ACT DOES NOT APPLY.
5. Conditions to Closing. (a) The obligation of the Purchaser to
purchase and pay for the Purchased Shares at the Closing is subject to the
satisfaction of the following conditions:
(i) Representations and Warranties. The representations and
warranties of the Company contained in Section 3 shall be true on and as
of the Closing Date with the same effect as
-9-
10
though such representations and warranties had been made on and as of
such date.
(ii) Performance. The Company shall have performed and complied
with all agreements and conditions contained herein required to be
performed or complied with by it prior to or at the Closing Date
including, without limitation, the issuance and delivery of the
Purchased Shares to the Purchaser.
(iii) Proceedings. All corporate proceedings to be taken by the
Company in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in substance and form
to the Purchaser and Purchaser shall receive all such counterpart
originals or certified or other copies of such documents as Purchaser
may reasonably request.
(iv) Registration Rights Agreement. The Company shall have
executed and delivered to the Purchaser the Registration Rights
Agreement.
(v) Certificate. The Company shall have delivered a certificate
signed by its President (or a vice President) and by its Chief
Financial Officer (or Vice President of Finance) as to the matters set
forth in Sections 5(a)(i) and (ii) hereof.
(vi) Legal Opinion. The Purchaser shall have received an opinion
of Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, counsel to the
Company, in form and substance satisfactory to such Purchaser, as to the
matters set forth in the first two sentences of Section 3(a) and the
matters set forth in Section 3(f) of this Agreement.
(b) The obligation of the Company to issue and sell the Purchased
Shares to the Purchaser at the Closing is subject to the satisfaction of the
following conditions:
-10-
11
(i) Representations and Warranties. The representations and
warranties of the Purchaser contained in Section 4 shall be true on and
as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
(ii) Performance. The Purchaser shall have performed and
complied with all agreements and conditions contained herein required to
be performed or complied with by it prior to or at the Closing Date
including, without limitation, the delivery of the Note as payment of
the Purchase Price.
6. Acceptance and Rejection of Subscription. The Purchaser
acknowledges and agrees that the subscription of the Purchaser contained in
this Agreement is not binding on the Company until the Company accepts such
subscription, which acceptance is at the sole discretion of the Company and is
to be evidenced by the Company's execution of this Agreement where indicated.
This Agreement shall be of no force or effect unless and until accepted by the
Company.
7. Definitions. The following terms when used in this Agreement or
in any other agreement or instrument entered into in connection with this
Agreement, shall have the meanings indicated below. Unless the context
otherwise requires, all personal pronouns used in this Agreement, whether in
the masculine, feminine or neuter gender, shall include all other genders, and
the plural form of any noun shall include the singular and the singular shall
include the plural.
"Accredited Investor" shall mean as such term is defined in Rule 501
promulgated by the SEC under the Act.
"Common Stock" shall mean the shares of Common Stock, $.01 par value per
share, of the Company.
-11-
12
"Note" shall mean the promissory note of the Purchaser in substantially
the form attached hereto as Exhibit E.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement in substantially the form attached hereto as Exhibit D.
8. Miscellaneous.
(a) Amendments and Waiver. This Agreement may only be amended or
waived in a written instrument signed by the Company and the Purchaser.
(b) Parties in Interest. This Agreement may not be assigned by either
the Purchaser or the Company without the prior written consent of the other
party hereto. All the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, whether so expressed or not, and,
in particular, shall inure to the benefit of and be enforceable by the holder
or holders at any time of any of the Notes.
(c) Law Governing. This Agreement shall be governed by and interpreted
under the laws of the State of New York, without regard to the conflict of law
rules thereof.
(d) Notices. Any notice or request herein required or permitted to be
given by the Company shall be given in writing and shall be sent to the
Purchaser at the address set forth on the signature page of this Agreement
unless another address is specified in writing by Purchaser in which case
notice shall be sent to the last known address of the Purchaser furnished to
the Company. Any notice required or permitted to be given to the Company shall
be given to the Company at the address set forth on page 1 of this Agreement,
or at such other address as the Company may designate by written communication
to the Purchaser. All such notices shall be conclusively deemed to be received
and shall be effective, (i) if
-12-
13
sent by hand delivery, upon receipt, (ii) if sent by telecopy, upon dispatch
thereof, or (iii) if sent by registered or certified mail, on the third day
after the day on which such notice is mailed.
(e) Headings. The headings of the sections and subsections of this
Agreement have been inserted for convenience of reference only and shall in no
way restrict or modify any of the terms or provisions hereof.
(f) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Purchaser and the Company with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating
to the subject matter hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall he deemed to
be an original, but such counterparts together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the Purchaser has executed this Agreement this __
day of ______________, 1996.
Number of Shares Subscribed INDIVIDUAL PURCHASER:
for:
--------------
------------------------------------------
Signature(s)
------------------------------------------
Print Name(s)
Number of Shares Subscribed ENTITY PURCHASER:
for:
--------------
------------------------------------------
Print Name of Entity
By:
--------------------------------------
------------------------------------------
Print Name and Title of
Person Signing
-13-
14
------------------------------------------
Social Security Number of
Individual or Tax I.D. Number
of Entity
Address:
------------------------------------------
Number and Street
------------------------------------------
City State Zip Code
Address for notices if different:
------------------------------------------
Number and Street
------------------------------------------
City State Zip Code
The foregoing Stock Purchase
Agreement is hereby accepted
and agreed to as of the
date hereof.
MULTIMEDIA GAMES, INC.
By
----------------------------
EXHIBITS
--------
A - Form 10-KSB
B - Form 10-QSB
C - Press Release
D - Registration Rights Agreement
E - Note
SCHEDULES
---------
A - Company Disclosure
B - Options and Rights
-14-
