ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is dated as of September 17, 2004,
by and between Anza Capital, Inc., a Nevada corporation ("Anza"), ▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇, individuals (collectively referred to as "▇▇▇▇▇"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq. (the "Agent"). Each of Anza and ▇▇▇▇▇ shall be referred to as a
"Party" and collectively as the "Parties."
I. Escrow
1.01 Appointment and Acknowledgment of Escrow Agent.
Anza and ▇▇▇▇▇ hereby appoint the Agent, and the Agent hereby agrees to
serve, as Escrow Agent pursuant to the terms of this Agreement. The Agent
acknowledges, or upon its receipt will acknowledge, receipt of the following:
(a) from Anza, Five Hundred Thousand (500,000) shares of Series G
Convertible Preferred Stock (the "Anza Shares"), and a warrant to purchase Two
Million (2,000,000) shares of common stock (the "Anza Warrants"); and
(b) from ▇▇▇▇▇, One Million (1,000,000) shares (the "TQ Shares") of
common stock of Cash Technologies, Inc. ("TQ").
The properties described in Sections 1.01(a) and 1.01(b) collectively are
referred to as the "Escrowed Property." If the Escrowed Property includes
property on which dividends are paid, on which interest is earned, or to which
other accretions are added, then the dividends, interest, and/or accretions will
be sent directly to the registered holder of the Escrowed Property. If the
Escrowed Property consists of stock, the registered holder shall exercise all
rights and privileges of a stockholder with respect to the shares deposited and
held pursuant to this Agreement.
1.02 Operation of Escrow.
The Parties hereto agree that the escrow created by this Agreement (the
"Escrow") shall operate as follows:
(a) Within two (2) business days of the Agent's receipt of the Anza
Warrants, the Agent shall deliver the Anza Warrants to ▇▇▇▇▇.
(b) Upon the receipt of a notice of conversion from ▇▇▇▇▇ with
respect to any number of the Anza Shares, then the Agent shall release that
number of Anza Shares so converted to Anza.
(c) Upon the receipt of a notice of termination from either Party,
notifying the Agent that that certain Securities Exchange Agreement by and
between
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Anza and ▇▇▇▇▇ has been terminated, the Agent shall release the Escrowed
Property then in its possession in accordance with Section 1.02(d) below.
(d) Upon the conversion of all of the Anza Shares, or the event
described in (c) above,the Agent shall deliver any of the unconverted Anza
Shares then in its possession to Anza, and any of the TQ Shares and/or cash from
the sale of any TQ Shares or other assets, then in its possession to ▇▇▇▇▇, and
this Escrow shall terminate.
(e) Notwithstanding the above, ▇▇▇▇▇ ▇▇▇▇▇ shall be entitled to
instruct the Escrow Agent to sell any amount of the TQ Shares held in escrow as
long as the total value of TQ Shares and/or cash and/or other assets acceptable
to Anza remaining in the escrow account is approximately $1,000,000.
1.03 Further Provisions Relating to the Escrow.
(a) Distributions by the Agent in accordance with the terms of this
Agreement shall operate to divest all right, title, interest, claim, and demand,
either at law or in equity, of any party to this Agreement (other than the
distributee) in and to the Escrowed Property distributed and shall be a
perpetual bar both at law and in equity with respect to such distributed
Escrowed Property against the parties to this Agreement and against any person
claiming or attempting to claim such distributed escrowed property from,
through, or under such party.
(b) Anza agrees to reimburse the Agent for the Agent's reasonable
fees and other expenses (including legal fees and expenses) incurred by the
Agent in connection with its duties hereunder.
(c) Anza and ▇▇▇▇▇, jointly and severally, agree to indemnify and
hold harmless the Agent against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other expenses
(including legal counsel fees and expenses of attorneys chosen by the Agent) as
and when incurred and whether or not involving a third party arising out of or
based upon any act, omissions, alleged act, or alleged omission by the Agent or
any other cause, in any case in connection with the acceptance of, or the
performance or nonperformance by the Agent of, any of the Agent's duties under
this Agreement, except as a result of the Agent's bad faith or gross negligence.
The Agent shall be fully protected by acting in reliance upon any notice,
advice, direction, other document, or signature believed by the Agent to be
genuine, by assuming that any person purporting to give the Agent any notice,
advice, direction, or other document in accordance with the provisions hereof,
in connection with this Agreement, or in connection with the Agent's duties
under this Agreement, has been duly authorized so to do, or by acting or failing
to act in good faith on the advice of any counsel retained by the Agent. The
Agent shall not be liable for any mistake of fact or of law or any error of
judgment, or for any act or any omission, except as a result of the Agent's bad
faith or gross negligence. If any of the Escrowed Property is represented by
stock certificates, the Agent shall not be liable if the Agent submits all or a
portion of the
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Escrowed Property to be broken into smaller denominations to the appropriate
transfer agent, and such transfer agent fails to return properly that portion of
the Escrowed Property to the Agent which such transfer agent was instructed to
return.
(d) The Agent makes no representation as to the validity, value,
genuineness, or the collectibility of any security or other document or
instrument held by or delivered to the Agent and has not opined on or advised
either party of the legality of the proposed transaction or its compliance with
applicable state or federal securities laws. Anza and ▇▇▇▇▇ each represent that
they are not being represented by the Agent in a legal capacity concerning the
proposed transaction as set forth in the Securities Exchange Agreement and
related documents signed by Anza and ▇▇▇▇▇ and each party has had the
opportunity to consult with their own legal advisors prior to the signing of
this Agreement. The Agent has acted as legal counsel for ▇▇▇▇▇ in the past and
may act as legal counsel to ▇▇▇▇▇ in the future, notwithstanding his duties as
the Escrow Agent hereunder. Anza consents to the Agent acting as escrow agent
pursuant to the terms of this Agreement and waives any claim that past or future
representation of ▇▇▇▇▇ by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., even during the term of this
Agreement, is a conflict of interest on the part of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. Anza
and ▇▇▇▇▇ each understand that Agent is relying explicitly on the foregoing
provisions contained in this Section in entering into this Agreement.
(e) The Agent shall have no duties or responsibilities except those
expressly set forth herein. The Parties hereto agree that the Agent will not be
called upon to construe any contract or instrument. The Agent shall not be bound
by any notice of a claim, or demand with respect thereto, or any waiver,
modification, amendment, termination, cancellation, or revision of this
Agreement, unless in writing and signed by the other Parties hereto and received
by the Agent and, if the Agent's duties as Escrow Agent hereunder are affected,
unless the Agent shall have given its prior written consent thereto. The Agent
shall not be bound by any assignment by Anza or by ▇▇▇▇▇ of its rights hereunder
unless the Agent shall have received written notice thereof from the assignor.
The Agent is authorized to comply with and obey laws, rules, regulations,
orders, judgments, and decrees of any governmental authority, court, or other
tribunal. If the Agent complies with any such law, rule, regulation, order,
judgment, or decree, the Agent shall not be liable to any of the Parties hereto
or to any other person even if such law, rule, order, regulation, judgment, or
decree is subsequently reversed, modified, annulled, set aside, vacated, found
to have been entered without jurisdiction, or found to be in violation of or
beyond the scope of a constitution or a law.
(f) If the Agent shall be uncertain as to the Agent's duties or
rights hereunder, shall receive any notice, advice, direction, or other document
from any other party with respect to the Escrowed Property which, in the Agent's
opinion, is in conflict with any of the provisions of this Agreement, or should
be advised that a dispute has arisen with respect to the payment, ownership, or
right of possession of the Escrowed Property or any part thereof, or the
property to be exchanged for the Escrowed Property (or as to the delivery,
non-delivery, or content of any notice, advice, direction, or other document),
the Agent shall be entitled, without liability to anyone, to refrain from taking
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any action other than to use the Agent's reasonable efforts to keep safely the
Escrowed Property until the Agent shall be directed otherwise in writing by both
other parties hereto or by an order, decree, or judgment of a court of competent
jurisdiction which has been finally affirmed on appeal or which by lapse of time
or otherwise is no longer subject to appeal (a "Final Judgment"), but the Agent
shall be under no duty to institute or to defend any proceeding, although the
Agent may, in the Agent's discretion and at the expense of Anza and ▇▇▇▇▇ as
provided in Section 1.03(c), institute or defend such proceedings.
(g) The Agent (and any successor escrow agent or agents) reserves the
right to resign as the Escrow Agent at any time, provided fifteen (15) days'
prior written notice is given to the other parties hereto, and provided further
that a mutually acceptable successor Escrow Agent(s) is named within such
fifteen (15) day period. The Agent may, but is not obligated to, petition any
court in the State of Connecticut having jurisdiction to designate a successor
Escrow Agent. The resignation of the Agent (and any successor escrow agent or
agents) shall be effective only upon delivery of the Escrowed Property to the
successor escrow agent(s). The Parties reserve the right to jointly remove the
Escrow Agent at any time, provided fifteen (15) days' prior written notice is
given to the Escrow Agent. If no successor Escrow Agent has been appointed and
has accepted the Escrowed Property within fifteen (15) days after the Notice is
sent, all responsibilities of the Agent hereunder shall, nevertheless, case. The
Agent's sole responsibility thereafter shall be to use the Agent's reasonable
efforts to keep safely the Escrowed Property and to deliver the Escrowed
Property as may be directed in writing by both of the other parties hereto or by
a Final Judgment. Except as set forth in this Section 1.03(g), this Agreement
shall not otherwise be assignable by the Agent without the prior written consent
of the other parties hereto.
(h) Anza and ▇▇▇▇▇ authorize the Agent, if the Agent is threatened
with litigation or is sued, to interplead all interested parties in any court of
competent jurisdiction and to deposit the Escrowed Property with the clerk of
that court.
(i) The Agent's responsibilities and liabilities hereunder, except as
a result of the Agent's own bad faith or gross negligence, will terminate upon
the delivery by the Agent of al the Escrowed Property under any provision of
this Agreement.
(j) As consideration for acting as escrow agent hereunder, Anza shall
pay, in advance and as a condition precedent to the establishment of the Escrow
pursuant to the terms of this Agreement, a fee of $6,000.00. This fee shall be
deemed to have been earned in full by the Agent upon establishment of the
Escrow, and shall not be subject to pro-ration or other setoff in the event the
Escrow is terminated by any party. In the event the term of the Escrow goes
beyond 12 months then in such event Anza and Agent shall mutually agree upon
what additional amount shall be paid to Agent at the end of the 12 month period.
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II. Miscellaneous
2.01 Further Action.
At any time and from time to time, Anza and ▇▇▇▇▇ each agrees, at its own
expense, to take such actions and to execute and deliver such documents as may
be reasonably necessary to effectuate the purposes of this Agreement. If any
portion of the Escrowed Property consists of stock certificates, Anza shall pay
any transfer tax arising out of the placing of the Escrowed Property into the
Escrow, the delivery of the Escrowed Property out of the Escrow, or the transfer
of the Escrowed Property into the name of any person or entity pursuant to the
terms of this Agreement. The Agent shall have no liability regarding transfer
taxes even if one or both of the Parties hereto fails to comply with the
obligations set forth in the prior sentence.
2.02 Survival.
Subject to Section 1.03(i), the covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive the
delivery by the Agent of the Escrowed Property, irrespective of any
investigation made by or on behalf of any party.
2.03 Modification.
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements among
them concerning such subject matter, and (subject to Section 1.03(e)) may be
modified only by a written instrument duly executed by each party.
2.04 Notices.
Any notice, advice, direction, or other document or communication required
or permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or by Federal Express, Express Mail,
or similar overnight delivery or courier service or delivered (in person or by
facsimile) against receipt to the party to whom it is to be given at address of
such party set forth below (or to such other address as the party shall have
furnished in writing in accordance with the provisions of this Section 2.04)
with a copy to each of the other parties hereto:
If to Anza: Anza Capital, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Lebrecht Group, APLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Page 5 of ▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇: ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇
33 ▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
Phone ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
If to Agent: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇
Phone ▇▇▇-▇▇▇-▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
Any notice, advice, direction, or other document or communication given by
certified mail shall be deemed given at the time of receipt thereof. Any notice
given by other means permitted by this Section 2.04 shall be deemed given at the
time of receipt thereof.
2.05 Waiver.
Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
2.06 Binding Effect.
Subject to Section 1.03(g), the provisions of this Agreement shall be
binding upon and inure to the benefit of Anza and ▇▇▇▇▇ and their respective
assigns, heirs, and personal representatives, and shall be binding upon and
insure to the benefit of the Agent and the Agent's successors and assigns.
2.07 No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as creating, any
rights enforceable by any person not a party to this Agreement (except as
provided in Section 2.06).
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2.08 Jurisdiction.
The parties hereby irrevocably consent to the jurisdiction of the courts of
the State of Connecticut and of any federal court located in such State in
connection with any action or proceeding arising out of or relating to this
Agreement, and document or instrument delivered pursuant to, in connection with,
or simultaneously with this Agreement, a breach of this Agreement or of any such
document or instrument, or the Escrowed Property.
2.09 Separability.
This entire Agreement shall be void if any provision of this Agreement
other than the second and third sentences of Section 2.11 is invalid, illegal,
unenforceable, or inapplicable to any person or circumstance to which it is
intended to be applicable, except that the provisions of Section 1.03 shall
survive.
2.10 Headings.
The headings in this Agreement are solely for convenience of reference and
shall be given no effect in the construction or interpretation of this
Agreement.
2.11 Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. An executed facsimile counterpart of this Agreement shall
be effective as an original. It shall be governed by and construed in accordance
with the laws of the State of Connecticut without giving effect to conflict of
laws. Any action, suit, or proceeding arising out of, based on, or in connection
with this Agreement , any document or instrument delivered pursuant to, in
connection with, or simultaneously with this Agreement, any breach of this
Agreement or any such document or instrument, or any transaction contemplated
hereby or thereby may be brought only in the appropriate court in Fairfield
County, Connecticut, and each party covenants and agrees not to assert, by way
of motion, as a defense, or otherwise, in any such action, suit, or proceeding,
any claim that such party is not subject personally to the jurisdiction of such
court, that such party's property is exempt or immune from attachment or
execution, that the action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the action, suit, or proceeding is improper, or that
this Agreement or the subject matter hereof may not be enforced in or by such
court.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date first written above.
"Anza" "▇▇▇▇▇"
Anza Capital, Inc.,
a Nevada corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------ ------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Its President
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
"Agent"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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