EXHIBIT 2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of April 21, 1997
("Escrow Agreement") is by and among X.X. XXXXX
ENTERPRISES, INC., a Georgia corporation ("Consultant");
SPINTEK GAMING TECHNOLOGIES, INC., a California
corporation ("Issuer"), the subscribers listed on Exhibit
A attached hereto (each a "Subscriber" and collectively
the "Subscribers"); and XXXXXX XXXXXXX XXXXX &
SCARBOROUGH, L.L.P., a limited liability partnership, as
Escrow Agent hereunder ("Escrow Agent" or "NMRS").
BACKGROUND
A. Issuer has engaged Consultant to assist it in
locating offshore persons to purchase 1429 shares of
Issuer's Series A Preferred Stock (the "Preferred Stock"
or the "Shares") for a purchase price of One Million
Dollars ($1,000,000.00 U.S.), convertible into shares of
common stock of the Issuer, pursuant to the Regulation S
Securities Subscription Agreements attached hereto as
Exhibit B (collectively the "Subscription Agreements" and
individually a "Subscription Agreement").
B. In accordance with the Subscription Agreements,
Subscribers for the Shares will be required to submit full
payment for their respective investments at the time they
execute the Subscription Agreements.
C. All payments received by Consultant in
connection with subscriptions for Shares shall be promptly
forwarded to Escrow Agent, and Escrow Agent has agreed to
accept, hold, and disburse such funds deposited with it
and the earnings thereon in accordance with the terms of
this Escrow Agreement.
D. In order to establish the escrow of funds and to
effect the consummation of the transaction contemplated by
the Subscription Agreements, the parties hereto have
entered into this Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, for themselves, their
successors and assigns, hereby agree as follows:
1. Definitions. The following terms shall have the
following meanings when used herein:
"Cash Investment" shall mean the purchase price
of the Preferred Stock to be purchased by any Subscriber
as set forth in the Subscription Agreements.
"Cash Investment Instrument" shall mean a wire
transfer or other immediately available funds paid to the
"Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx-Escrow Account," in
full payment for the Shares to be purchased by any
Subscriber.
"Escrow Funds" shall mean the funds deposited
with the Escrow Agent pursuant to this Agreement, together
with any interest and other income thereon.
"Entire Offering" shall mean the sale of 1429
shares of Preferred Stock for an aggregate purchase price
of One Million Dollars ($1,000,000.00 U.S.).
"Offering Notice" shall mean a written
notification, signed by Consultant, which shall specify
that subscriptions for the Entire Offering have been
received; that, Cash Investment Instruments in full
payment for that number of Shares equal to the Entire
Offering have been received, deposited with and collected
by Escrow Agent; and that such subscriptions have not been
withdrawn, rejected or otherwise terminated.
"Subscription Accounting" shall mean an
accounting of all subscriptions for Preferred Stock
received and accepted by Consultant as of the date of such
accounting, indicating for each subscription the
Subscriber's name and address, the number of shares of
Preferred Stock and total purchase price, the date of
receipt by Consultant of the Cash Investment Instrument,
and notations of any nonpayment of the Cash Investment
Instrument submitted with such subscription, any
withdrawal of such subscription by the Subscriber, any
rejection of such subscription by Consultant, or other
termination, for whatever reason, of such subscription.
2. Appointment of and Acceptance by Escrow
Agent. Issuer, Consultant and Subscribers hereby appoint
Escrow Agent to serve as escrow agent hereunder, and
Escrow Agent hereby accepts such appointment in accordance
with the terms of this Escrow Agreement.
3. Deposits into Escrow. a. Upon receipt by
Consultant of any Cash Investment Instrument for the
purchase of the Preferred Stock, Consultant shall forward
to Escrow Agent, by 12:00 noon of the next business day,
the Cash Investment Instrument for deposit into the
following escrow account:
First Union National Bank
Credit to the account of:
Xxxxxx Xxxxxxx Xxxxx & Scarborough IOLTA Account
ABA #000000000
ACCT #2080000501666
ATTN: Xxxxxx X. Xxxxxxxxxx
Re: X.X. Xxxxx Enterprises, Inc.
Notify Xxxxxxx Xxxxxxxxxxx at (000) 000-0000
Each such deposit shall be accompanied by the following
documents:
(1) a report containing such Subscriber's name,
taxpayer identification number, address and
other information required for withholding
purposes; and
(2) a Subscription Accounting.
ALL FUNDS SO DEPOSITED SHALL REMAIN THE PROPERTY
OF THE SUBSCRIBERS ACCORDING TO THEIR RESPECTIVE INTERESTS
AND SHALL NOT BE SUBJECT TO ANY LIEN OR CHARGE BY ESCROW
AGENT OR BY JUDGMENT OR CREDITORS' CLAIMS AGAINST ISSUER
UNTIL RELEASED TO ISSUER IN ACCORDANCE WITH SECTION 4(a)
HEREOF.
b. Consultant and Issuer understand and agree that
all checks and similar instruments received by Escrow
Agent hereunder are subject to collection requirements of
presentment and final payment, and that the funds
represented thereby cannot be drawn upon or disbursed
until such time as final payment has been made and is no
longer subject to dishonor. Upon receipt, Escrow Agent
shall process each Cash Investment Instrument for
collection, and the proceeds thereof shall be held as part
of the Escrow Funds until disbursed in accordance with
Section 4 hereof. If, upon presentment for payment, any
Cash Investment Instrument is dishonored, Escrow Agent's
sole obligation shall be to notify Consultant of such
dishonor and to return such Cash Investment Instrument to
Consultant to take whatever action it deems necessary.
Notwithstanding the foregoing, if for any reason any Cash
Investment Instrument is uncollectible after payment of
the funds represented thereby has been made by Escrow
Agent, Issuer shall immediately reimburse Escrow Agent
upon receipt from Escrow Agent of written notice thereof.
Upon receipt of any Cash Investment Instrument
that represents payment less than or greater than the Cash
Investment, Escrow Agent's sole obligation shall be to
notify Issuer and Consultant of such fact and to return
such Cash Investment Instrument to Consultant.
c. All Cash Investment Instruments shall be made
payable to the order of, or endorsed to the order of,
"Xxxxxx Xxxxxxx Xxxxx & Scarborough-Escrow Account," and
Escrow Agent shall not be obligated to accept, or present
for payment, any Cash Investment Instrument that is not
payable or endorsed in that manner.
4. Disbursements of Escrow Funds.
a. Completion of Offering. Subject to the
provisions of Section 10 hereof, Escrow Agent shall pay to
Issuer the liquidated value of the Escrow Funds, by
certified or bank check or by wire transfer, no later than
two (2) business days following receipt of the following
documents:
(1) An Offering Notice;
(2) Subscription Accounting, substantiating the
sale of the Entire Offering;
(3) Subscription Agreement signed by all parties;
(4) Stock Certificates representing the Shares for
each Subscriber; and
(5) Such other certificates, notices or other
documents as Escrow Agent, in its discretion,
shall reasonably require.
Notwithstanding the foregoing, Escrow Agent shall not
be obligated to disburse the Escrow Funds to Issuer if
Escrow Agent has grounds to believe that (a) Cash
Investment Instruments in full payment for that number of
Debentures equal to or greater than the Entire Offering
have not been received, deposited with and collected by
the Escrow Agent, subject to the right of Issuer and
Consultant, as agent for the Subscribers, to consummate
the sale of some, but not all, of the Debentures or (b)
any of the certifications and opinions set forth in the
documents are incorrect or incomplete. Prior to
disbursing any Escrow Funds or stock certificates, Escrow
Agent shall be entitled, in its reasonable discretion, to
require any additional written certificates or
authorizations that it deems necessary or desirable.
b. Rejection of any Subscription or termination of
the Offering. No later than fifteen (15) business days
after receipt by Escrow Agent of written notice (i) from
Issuer or Consultant that Issuer intends to reject a
Subscriber's subscription, or (ii) from Issuer or
Consultant that there will be no closing of the sale of
Shares to Subscribers, Escrow Agent shall pay to the
applicable Subscribers, by certified or bank check and by
first class mail, the amount of the Cash Investment paid
by each Subscriber, without interest or deduction.
c. Expiration of Offering Period. Notwithstanding
anything to the contrary contained herein, if Escrow Agent
shall not have received an Offering Notice on or before
April 30, 1997, Escrow Agent shall, within fifteen (15)
business days after such date and without any further
instruction or direction from Consultant or Issuer, return
to each Subscriber, by certified or bank check and by
first class mail, the Cash Investment made by such
Subscriber, without interest or deduction.
5. Suspension of Performance or Disbursement Into
Court.If, at any time, there shall exist any dispute
between Consultant, Issuer, Escrow Agent, any Subscriber
or any other person with respect to the holding or
disposition of any portion of the Escrow Funds or any
other obligations of Escrow Agent hereunder, or if at any
time Escrow Agent is unable to determine, to Escrow
Agent's sole satisfaction, the proper disposition of any
portion of the Escrow Funds or Escrow Agent's proper
actions with respect to its obligations hereunder, or if
Consultant and Issuer have not within 30 days of the
furnishing by Escrow Agent of a notice of resignation
pursuant to Section 7 hereof appointed a successor Escrow
Agent to act hereunder, then Escrow Agent may, in its sole
discretion, take either or both of the following actions:
a. suspend the performance of any of its
obligations under this Escrow Agreement until such dispute
or uncertainty shall be resolved to the sole satisfaction
of Escrow Agent or until a successor Escrow Agent shall
have been appointed (as the case may be); and/or
b. petition (by means of an interpleader action or
any other appropriate method) any court of competent
jurisdiction in Atlanta, Georgia, for instructions with
respect to such dispute or uncertainty, and pay into such
court all funds held by it for holding and disposition in
accordance with the instructions of such court.
Escrow Agent shall have no liability to Consultant,
Issuer, any Subscriber or any other person with respect to
any such suspension of performance or disbursement into
court, specifically including any liability or claimed
liability that may arise, or be alleged to have arisen,
out of or as a result of any delay in the disbursement of
funds held in the Escrow Funds or any delay in or with
respect to any other action required or requested of
Escrow Agent.
6. Investment of Funds. Escrow Agent shall not
invest or reinvest the Escrow Funds. The parties to this
Escrow Agreement acknowledge that no interest shall accrue
or be paid with respect to the Escrow Funds.
7. Resignation and Removal of Escrow Agent. Escrow
Agent may resign from the performance of its duties
hereunder at any time by giving ten (10) days' prior
written notice to Consultant and Issuer or may be removed,
with or without cause, by Consultant and Issuer, acting
jointly in writing, at any time by the give of ten (10)
days' prior written notice to Escrow Agent. Such
resignation or removal shall take effect upon the
appointment of a successor Escrow Agent as provided
hereinbelow. Upon any such notice of resignation or
removal, Consultant and Issuer jointly shall appoint a
successor Escrow Agent hereunder, which shall be a
commercial bank, trust company or other financial
institution with a combined capital and surplus in excess
of $10,000,000. Upon the acceptance in writing of any
appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and
the retiring Escrow Agent shall be discharged from its
duties and obligations under this Escrow Agreement, but
shall not be discharged from any liability for actions
taken as escrow agent hereunder prior to such succession.
After any retiring Escrow Agent's resignation or removal,
the provisions of this Escrow Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by
it while it was Escrow Agent under this Escrow Agreement.
8. Liability of Escrow Agent.
a. Escrow Agent shall have no liability or
obligation with respect to the Escrow Funds except for
Escrow Agent's willful misconduct or gross negligence.
Escrow Agent's sole responsibility shall be for the
safekeeping and disbursement of the Escrow Funds in
accordance with the terms of this Escrow Agreement.
Escrow Agent shall have no implied duties or obligations
and shall not be charged with knowledge or notice of any
fact or circumstance not specifically set forth herein.
Escrow Agent may rely upon any instrument, whether bearing
original, conformed or facsimile signatures, not only as
to its due execution, validity and effectiveness, but also
as to the truth and accuracy of any information contained
therein which Escrow Agent shall in good faith believe to
be genuine, to have been signed or presented by the person
or parties purporting to sign the same and to conform to
the provisions of this Escrow Agreement. In no event
shall Escrow Agent be liable for incidental, indirect,
special, consequential or punitive damages. Escrow Agent
shall not be obligated to take any legal action or
commence any proceeding in connection with the Escrow
Funds or any account in which Escrow Funds are deposited
or this Escrow Agreement, or to appear in, prosecute or
defend any such legal action or proceeding. Without
limiting the generality of the foregoing, Escrow Agent
shall not be responsible for or required to enforce any of
the terms or conditions of any subscription agreement with
any Subscriber or any other agreement between Issuer,
Consultant and/or any Subscriber. Escrow Agent shall not
be responsible or liable in any manner for the performance
by Issuer or any Subscriber of their respective
obligations under any subscription agreement nor shall
Escrow Agent be responsible or liable in any manner for
the failure of Issuer, Consultant or any third party
(including any Subscriber) to honor any of the provisions
of this Escrow Agreement. Escrow Agent may consult legal
counsel selected by it in the event of any dispute or
question as to the construction of any of the provisions
hereof or of any other agreement or of its duties
hereunder, and shall incur no liability and shall be fully
indemnified from any liability whatsoever in acting in
accordance with the opinion or instruction of such
counsel. Issuer shall promptly pay, upon demand, the
reasonable fees and expenses of any such counsel.
b. The Escrow Agent is authorized, in its sole
discretion, to comply with orders issued or process
entered by any court with respect to the Escrow Funds,
without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow
Funds is at any time attached, garnished or levied upon
under any court order, or in case the payment, assignment,
transfer, conveyance or delivery of any such property
shall be stayed or enjoined by any court order, or in case
any order, judgment or decree shall be made or entered by
any court affecting such property or any part thereof,
then and in any such event, the Escrow Agent is
authorized, in its sole discretion, to rely upon and
comply with any such order, writ, judgment or decree which
it is advised by legal counsel selected by it is binding
upon it without the need for appeal or other action; and
if the Escrow Agent complies with any such order, writ,
judgment or decree, it shall not be liable to any of the
parties hereto or to any other person or entity by reason
of such compliance even though such order, writ, judgment
or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
9. Indemnification of Escrow Agent.From and at
all times after the date of this Escrow Agreement, Issuer
and each Subscriber (each an "Indemnifying Party") shall,
severally and not jointly, to the fullest extent permitted
by law, indemnify and hold harmless the Escrow Agent and
each director, officer, employee, attorney, agent and
affiliate of Escrow Agent (collectively, the "Indemnified
Parties") against any and all actions, claims (whether or
not valid), losses, damages, liabilities, costs and
expenses of any kind or nature whatsoever (including
without limitation reasonable attorneys' fees, costs and
expenses) incurred by or asserted against any of the
Indemnified Parties from and after the date hereof,
whether direct, indirect or consequential, as a result of
or arising from or in any way relating to any claim,
demand, suit, action or proceeding (including any inquiry
or investigation) by any person, including without
limitation Issuer or Consultant, whether threatened or
initiated, asserting a claim for any legal or equitable
remedy against any person under any statute or regulation,
including, but not limited to, any federal or state
securities laws, or under any common law or equitable
cause or otherwise, arising from or in connection with the
negotiation, preparation, execution, performance or
failure of performance of this Escrow Agreement or any
transactions contemplated herein, whether or not any such
Indemnified Party is a party to any such action,
proceeding, suit or the target of any such inquiry or
investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for
any liability finally determined by a court of competent
jurisdiction, subject to no further appeal, to have
resulted solely from the gross negligence or willful
misconduct of such Indemnified Party. If any such action
or claim shall be brought or asserted against any
Indemnified Party, such Indemnified Party shall promptly
notify the Indemnifying Party in writing, and the
Indemnifying Party shall assume the defense thereof,
including the employment of counsel and the payment of all
expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel (who
may be selected by such Indemnified Party in its sole
discretion) in any such action and to participate in the
defense thereof, and the fees and expenses of such counsel
shall be paid by such Indemnified Party, except that the
Indemnifying Party shall be required to pay such fees and
expenses if (a) the Indemnifying Party agrees to pay such
fees and expenses, (b) the Indemnifying Party shall fail
to assume the defense of such action or proceeding or
shall fail, in the reasonable discretion of such
Indemnified Party, to employ counsel satisfactory to the
Indemnified Party in any such action or proceeding, (c)
the Indemnifying Party is the plaintiff in any such action
or proceeding, or (d) the named parties to any such action
or proceeding (including any impleaded parties) include
both Indemnified Party and the Indemnifying Party, and
Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to it
which are different from or additional to those available
to Issuer. The Indemnifying Party shall be liable to pay
fees and expenses of counsel pursuant to the preceding
sentence. All such fees and expenses payable by the
Indemnifying Party pursuant to the foregoing sentence
shall be paid from time to time as incurred, both in
advance of and after the final disposition of such action
or claim. The obligations of each Indemnifying Party
under this Section 9 shall survive any termination of this
Escrow Agreement and the resignation or removal of Escrow
Agent.
10. Compensation to Escrow Agent.
a. Fees and Expenses.Consultant shall compensate
Escrow Agent for its services hereunder by making the
payment set forth on Exhibit C attached hereto. The
obligations of Consultant under this Section 10 shall
survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
b. Disbursements from Escrow Funds to Pay Escrow
Agent. The Escrow Agent is authorized to and may disburse
from time to time, to itself or to any Indemnified Party
from the Escrow Funds (to the extent of Consultant's
rights thereto), the amount of any compensation and
reimbursement of out-of-pocket expenses due and payable
hereunder (including the amount set forth on Exhibit C and
any amount to which Escrow Agent or any Indemnified Party
is entitled to seek indemnification pursuant to Section 9
hereof). Escrow Agent shall notify Issuer of any
disbursement from the Escrow Funds to itself or to any
Indemnified Party in respect of any compensation or
reimbursement hereunder and shall furnish to Issuer copies
of all related invoices and other statements.
c. Security and Offset. Consultant hereby grants
to Escrow Agent and the Indemnified Parties a security
interest in and lien upon the Escrow Funds (to the extent
of Consultant's rights thereto) to secure all obligations
hereunder, and Escrow Agent and the Indemnified Parties
shall have the right to offset the amount of any
compensation or reimbursement due any of them hereunder
(including any claim for indemnification pursuant to
Section 9 hereof) against the Escrow Funds (to the extent
of Issuer's rights thereto). If for any reason the Escrow
Funds available to Escrow Agent and the Indemnified
Parties pursuant to such security interest or right of
offset are insufficient to cover such compensation and
reimbursement, Consultant shall promptly pay such amounts
to Escrow Agent and the Indemnified Parties upon receipt
of an itemized invoice.
d. Payment of X.X. Xxxxx Enterprises, Inc. Monies.
It is understood that Consultant is due a fee of One
Hundred and Twenty Thousand Dollars ($120,000.00 U.S.)
(the "Fee"). The parties hereto agree that, upon
completion of the Offering, Escrow Agent shall remit via
wire transfer to the parties designated by Consultant the
Fee after first retaining and disbursing to itself from
the Fee legal fees and expenses previously billed to
Consultant by NMRS. Issuer shall have no obligation or
liability for any fees due to NMRS.
11. Representations and Warranties; Legal Opinions.
a. Issuer makes the following representations and
warranties to Escrow Agent:
(1) Issuer is a corporation duly organized,
validly existing, and in good standing under the laws of
the State of California, and has full power and authority
to execute and deliver this Escrow Agreement and to
perform its obligations hereunder.
(2) This Escrow Agreement has been duly
approved by all necessary corporate action of Issuer,
including any necessary shareholder approval, has been
executed by duly authorized officers of Issuer, and
constitutes a valid and binding agreement of Issuer,
enforceable in accordance with its terms.
(3) The execution, delivery, and performance by
Issuer of this Escrow Agreement will not violate, conflict
with, or cause a default under the certificate of
incorporation or bylaws of Issuer, any applicable law or
regulation, any court order or administrative ruling or
decree to which Issuer is a party or any of its property
is subject, or any agreement, contract, indenture, or
other binding arrangement to which Issuer is a party or
any of its property is subject.
(4) No party other than the parties hereto and
the prospective Subscribers have, or shall have, any lien,
claim or security interest in the Escrow Funds or any part
thereof. No financing statement under the Uniform
Commercial Code is on file in any jurisdiction claiming a
security interest in or describing (whether specifically
or generally) the Escrow Funds or any part thereof.
(5) Issuer hereby acknowledges that the status
of Escrow Agent is that of agent only for the limited
purposes set forth herein, and hereby represents and
covenants that no representation or implication shall be
made that the Escrow Agent has investigated the
desirability or advisability of investment in the Shares
or has approved, endorsed or passed upon the merits of the
investment therein and that the name of the Escrow Agent
has not and shall not be used in any manner in connection
with the offer or sale of the Shares other than to state
that the Escrow Agent has agreed to serve as escrow agent
for the limited purposes set forth herein.
(6) All of the representations and warranties
of Issuer contained herein are true and complete as of the
date hereof and will be true and complete at the time of
any deposit to or disbursement from the Escrow Funds.
b. Each Subscriber makes the following
representations and warranties to Escrow Agent:
(1) Subscriber has full power and authority to
execute and deliver this Escrow Agreement and to perform
its obligations hereunder.
(2) This Escrow Agreement has been duly
approved by all necessary action of Subscriber, including
any necessary shareholder approval, has been executed by
persons duly authorized by Subscriber, and constitutes a
valid and binding agreement of Subscriber, enforceable in
accordance with its terms.
(3) The execution, delivery, and performance by
Subscriber of this Escrow Agreement will not violate,
conflict with, or cause a default under the organizational
or governing documents of Subscriber, any applicable law
or regulation, any court order or administrative ruling or
decree to which Subscriber is a party or any of its
property is subject, or any agreement, contract,
indenture, or other binding arrangement to which
Subscriber is a party or any of its property is subject.
(4) Subscriber hereby acknowledges that the
status of Escrow Agent is that of agent only for the
limited purposes set forth herein, and hereby represents
and covenants that no representation or implication shall
be made that the Escrow Agent has investigated the
desirability or advisability of investment in the Shares
or has approved, endorsed or passed upon the merits of the
investment therein and that the name of the Escrow Agent
has not and shall not be used in any manner in connection
with the offer or sale of the Shares other than to state
that the Escrow Agent has agreed to serve as escrow agent
for the limited purposes set forth herein.
(5) All of the representations and warranties
of Subscriber contained herein are true and complete as of
the date hereof and will be true and complete at the time
of any deposit to or disbursement from the Escrow Funds.
c. Consultant makes the following representations
and warranties to Escrow Agent:
(1) Consultant is a corporation duly organized,
validly existing, and in good standing under the laws of
the State of Georgia, and has full power and authority to
execute and deliver this Escrow Agreement and to perform
its obligations hereunder;
(2) This Escrow Agreement has been duly
approved by all necessary corporate action of Consultant,
has been executed by duly authorized officers of
Consultant, and constitutes a valid and binding agreement
of Consultant, enforceable in accordance with its terms.
(3) The execution, delivery, and performance by
Consultant of this Escrow Agreement will not violate,
conflict with, or cause a default under the articles of
incorporation or bylaws of Consultant, any applicable law,
regulation or license, any court order or administrative
ruling or decree to which Consultant is a party or any of
its property is subject, party or any of its property is
subject.
(4) The deposit with Escrow Agent by Consultant
of Cash Investment Instruments pursuant to Section 3
hereof shall be deemed a representation and warranty by
Consultant that such Cash Investment Instrument represents
a bona fide sale to the Subscriber described therein of
the amount of Preferred Stock set forth therein, subject
to and in accordance with the terms of the Offering
Document.
(5) Consultant hereby acknowledges that the
status of Escrow Agent hereunder is that of agent only for
the limited purposes set forth herein, and hereby
represents and covenants that no representation or
implication shall be made that the Escrow Agent has
investigated the desirability or advisability of
investment in the Debentures or has approved, endorsed or
passed upon the merits of the investment therein and that
the name of the Escrow Agent has not and shall not be used
in any manner in connection with the offer or sale of the
Preferred Stock other than to state that the Escrow Agent
has agreed to serve as escrow agent for the limited
purposes set forth herein.
(6) All of the representations and warranties
of Consultant contained herein are true and complete as of
the date hereof and will be true and complete at the time
of any deposit to or disbursement from the Escrow Funds.
12. Consent to Jurisdiction and Xxxxx.Xx the event
that any party hereto commences a lawsuit or other
proceeding relating to or arising from this Agreement, the
parties hereto agree that the United States District Court
for the Northern District of Georgia shall have the sole
and exclusive jurisdiction over any such proceeding. If
all such courts lack federal subject matter jurisdiction,
the parties agree that the Superior Court Division of
Xxxxxx County shall have sole and exclusive jurisdiction.
Any of these courts shall be proper venue for any such
lawsuit or judicial proceeding and the parties hereto
waive any objection to such venue. The parties hereto
consent to and agree to submit to the jurisdiction of any
of the courts specified herein and agree to accept service
or process to vest personal jurisdiction over them in any
of these courts.
13. Notice. All notices and other communications
hereunder shall be in writing and shall be deemed to have
been validly served, given or delivered five (5) days
after deposit in the United States mails, by certified
mail with return receipt requested and postage prepaid,
when delivered personally, one (1) day after delivery to
any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be
notified as follows:
If to Issuer at: Spintek Gaming Technologies, Inc.
000 Xxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
ATTN: Xxxx X. Xxxxxxx, CEO
Facsimile Number: (000) 000-0000
If to Consultant at: X.X. Xxxxx Enterprises, Inc.
Xxxxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 000
3343 Peachtree Rd., N.E.
Xxxxxxx, Xxxxxxx 00000
ATTN: Xx. Xxxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
If to the Escrow Agent at:Xxxxxx Xxxxxxx Xxxxx & Scarborough,
Escrow Agent
First Union Plaza, Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
or to such other address as each party may designate for
itself by like notice.
14. Amendment or Waiver. This Escrow Agreement may
be changed, waived, discharged or terminated only by a
writing signed by Consultant, Issuer, Subscribers and
Escrow Agent. No delay or omission by any party in
exercising any right with respect hereto shall operate as
a waiver. A waiver on any one occasion shall not be
construed as a bar to, or waiver of, any right or remedy
on any future occasion.
15. Severability. To the extent any provision of
this Escrow Agreement is prohibited by or invalid under
applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the
remaining provisions of this Escrow Agreement.
16. Governing Law. This Escrow Agreement shall be
construed and interpreted in accordance with the internal
laws of the State of Georgia without giving effect to the
principles or rules governing conflict of laws.
17. Entire Agreement. This Escrow Agreement
constitutes the entire agreement among the parties
relating to the acceptance, collection, holding,
investment and disbursement of the Escrow Funds and sets
forth in their entirety the obligations and duties of the
Escrow Agent with respect to the Escrow Funds.
18. Binding Effect. All of the terms of this Escrow
Agreement, as amended from time to time, shall be binding
upon, inure to the benefit of and be enforceable by the
respective successors and assigns of Consultant, Issuer,
Subscribers and Escrow Agent.
19. Execution in Counterparts. This Escrow
Agreement may be executed in two or more counterparts,
which when so executed shall constitute one and the same
agreement.
20. Termination. Upon the first to occur of the
disbursement of all amounts in the Escrow funds or deposit
of all amounts in the Escrow Funds into court pursuant to
Section 5 hereof, this Escrow Agreement shall terminate
and Escrow Agent shall have no further obligation or
liability whatsoever with respect to this Escrow Agreement
or the Escrow Funds.
21. Dealings. The Escrow Agent and any stockholder,
director, officer or employee of the Escrow Agent may buy,
sell, and deal in any of the securities of the Issuer and
become pecuniarily interested in any transaction in which
the Issuer may be interested, and contract and lend money
to the Issuer and otherwise act as fully and freely as
though it were not Escrow Agent under this Agreement.
Nothing herein shall preclude the Escrow Agent from acting
in any other capacity for the Consultant or any other
person or entity.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused
this Escrow Agreement to be executed under seal as of the
date first above written.
ISSUER: SPINTEK GAMING TECHNOLOGIES, INC.
By:/s/ XXXX X. XXXXXXX
Title: Chairman
CONSULTANT: X.X. XXXXX ENTERPRISES, INC.
By:/s/ XXXXXX XXXXXXX
Title: President
SUBSCRIBERS: [Each Subscriber Must Execute a Separate
Signature Page]
ESCROW AGENT: XXXXXX XXXXXXX XXXXX & XXXXXXXXXXX, L.L.P.
as Escrow Agent
By:/s/ XXXXXX XXXXXXXXXX
Title: Partner
SUBSCRIBER'S SIGNATURE PAGE
Name of Subscriber:
RBB Bank Aktiengesellschaft (as agent for its clients)
Address of Subscriber:
Xxxxxxxx 00
0000 Xxxx
Xxxxxxx
By: /s/ XXXXXXX XXXXXXX
Title: Headtrader
EXHIBIT A
List of Subscribers
EXHIBIT B
Subscription Agreements
EXHIBIT C
Fees Payable to Escrow Agent
$2,500
