Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act.
¨
Item 3.02 Unregistered Sales of Equity Securities.
The information contained
in Item 1.01 of this report in relation to the Shares is hereby incorporated herein by reference.
Forward Looking Statements
This report contains forward-looking
statements, which are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements generally can be identified by use of statements that include, but are not limited to, phrases such
as “anticipate,” “believe,” “expect,” “future,” “intend,” “plan,”
and similar expressions to identify forward-looking statements. Forward-looking statements include, without limitation, the satisfaction
of the conditions to completion the Merger in the anticipated timeframe or at all, the financing of the Merger, risks related to
the financing of the Merger, the effect of the announcement of the transactions on the ability of the Company to retain and hire
key personnel and maintain relationships with its customers, suppliers, partners, and others with whom it does business, or on
its operating results and businesses generally, and the Company’s ability to increase income streams, to grow revenue and
earnings, and to obtain additional gaming and other projects. These statements are only predictions and are subject to certain
risks, uncertainties, and assumptions, which include, but are not limited to, those identified and described in the Company’s
public filings with the SEC. You are cautioned not to place undue reliance on these forward-looking statements, which speak only
as of the date hereof. The Company does not undertake any obligation to update any forward-looking statements as a result of new
information, future developments, or otherwise, except as expressly required by law.
Additional Information and Where to Find
It
In connection with the
proposed Merger, the Company plans to file relevant materials with the SEC, including a proxy statement. Promptly after filing
its definitive proxy statement with the SEC, the Company will mail the definitive proxy statement to each stockholder entitled
to vote at the special meeting relating to the proposed Merger. STOCKHOLDERS ARE URGED TO CAREFULLY READ THE PROXY STATEMENT (INCLUDING
ANY AMENDMENTS OR SUPPLEMENTS THERETO AND ANY DOCUMENTS INCORPORATED BY REFERENCE THEREIN) AND ANY OTHER RELEVANT DOCUMENTS IN
CONNECTION WITH THE PROPOSED MERGER THAT THE COMPANY WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER AND THE PARTIES THERETO. The definitive proxy statement, the preliminary proxy
statement, and other relevant materials in connection with the proposed Merger (when they become available) and any other documents
filed by the Company with the SEC, may be obtained free of charge at the SEC’s website (
www.sec.gov
)
or, without charge, from the Company by mail or online from the Company’s website at
www.nevadagold.com
.
Participants in the Solicitation
The Company and its directors
and executive officers may be deemed to be participants in the solicitation of proxies from the Company stockholders with respect
to the proposed Merger. Information about the directors and executive officers of the Company is set forth in the Company’s
Annual Report on Form 10-K for the year ended April 30, 2018, filed with the SEC on July 26, 2018. Other information regarding
the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise,
will be contained in the proxy statement and other relevant materials to be filed with the SEC in respect of the proposed Merger.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
|
|
Description
|
|
|
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2.1
|
|
Amendment No. 1 to Agreement and Plan of Merger dated as of November 29, 2018, by and among Nevada Gold & Casinos, Inc., Maverick Casinos LLC, and Maverick Casinos Merger Sub, Inc.
|
|
|
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10.1
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Securities Purchase Agreement dated as of November 29, 2018, by and between Nevada Gold & Casinos, Inc. and Maverick Casinos LLC.
|
|
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10.2
|
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Escrow Agreement dated as of November 29, 2018, by and among Nevada Gold & Casinos, Inc., Maverick Casinos LLC, and Mutual of Omaha Bank.
|
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: November 29, 2018
|
NEVADA GOLD & CASINOS, INC.
|
|
|
|
|
By:
|
/s/ Michael P. Shaunnessy
|
|
|
Name: Michael P. Shaunnessy
|
|
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Title: President and Chief Executive Officer
|
EXHIBIT INDEX
Exhibit
|
|
|
Number
|
|
Description
|
|
|
|
2.1
|
|
Amendment No. 1 to Agreement and Plan of Merger dated as of November 29, 2018, among Nevada Gold & Casinos, Inc., Maverick Casinos LLC, and Maverick Casinos Merger Sub, Inc.
|
|
|
|
10.1
|
|
Securities Purchase Agreement dated as of November 29, 2018, by and among Nevada Gold & Casinos, Inc. and Maverick Casinos LLC.
|
|
|
|
10.2
|
|
Escrow Agreement dated as of November 29, 2018, by and among Nevada Gold & Casinos, Inc., Maverick Casinos LLC, and Mutual of Omaha Bank.
|
Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF
MERGER
This AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER (this “
Amendment
”), dated as of November 29, 2018, by and among Nevada Gold &
Casinos, Inc., a Nevada corporation (the “
Company
”), Maverick Casinos LLC, a Nevada limited liability company
(“
Parent
”), and Maverick Casinos Merger Sub, Inc., a Nevada corporation and wholly owned Subsidiary of Parent
(“
Merger Sub
” and collectively with the Company and Parent, the “
Parties
”).
WHEREAS, the Parties entered
into that certain Agreement and Plan of Merger dated as of September 18, 2018 (the “
Merger Agreement
”), pursuant
to which Merger Sub will be merged with and into the Company (the “
Merger
”), with the Company to be the surviving
corporation of the Merger, upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Parties desire
to amend certain terms of the Merger Agreement as set forth herein in accordance with
Section 8.04
of the Merger Agreement;
WHEREAS, the board of directors
of the Company has unanimously (i) determined that it is fair to and in the best interests of the Company, including its stockholders,
and declared it advisable, for the Company to enter into this Amendment, and (ii) approved the execution, delivery, and performance
by the Company of this Amendment, in each case, upon the terms and subject to the conditions set forth herein; and
WHEREAS, the managers of
Parent and the board of directors of Merger Sub have determined that it is fair to and in the best interests of Parent and Merger
Sub, and declared it advisable, for Parent and Merger Sub, as applicable, to enter into this Amendment, and (ii) approved the execution,
delivery, and performance by Parent and Merger Sub, as applicable, of this Amendment, and Parent, as the sole stockholder of Merger
Sub, has approved this Amendment, in each case, upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration
of the foregoing premises and the respective covenants and agreements set forth herein, as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intended to legally bound hereby, the Parties hereby agree as
follows:
|
1.
|
Amendments to Merger Agreement
.
|
(a)
Amendments
to the Fourth Paragraph of the Recitals to the Merger Agreement
. The fourth paragraph of the Recitals to the Merger Agreement
is hereby amended and restated in its entirety to read as follows:
“WHEREAS,
concurrently with the execution of this Agreement, Parent has deposited $2 million, in immediately available funds, with Fidelity
National Title Agency of Nevada, Inc., a Nevada corporation dba Fidelity National Title Group, as escrow agent (“
Fidelity
Title
”), into a segregated escrow account under and as specified in the Escrow Agreement, executed by Parent, the Company,
and Fidelity Title contemporaneously with the execution of this Agreement (the “
Initial Escrow Agreement
”),
to be held, released, or disposed of by Fidelity Title in accordance with the terms of this Agreement and the Initial Escrow Agreement.”
(b)
Amendments
to Section 1.01 of the Merger Agreement
.
(i)
Section
1.01
of the Merger Agreement is hereby amended by adding the following new definitions and inserting the same in the appropriate
alphabetical locations:
“
Escrow
Agent
” means Mutual of Omaha Bank.
“
Escrow
Shares
” means the Maverick Shares deposited with and held by the Escrow Agent in accordance with the terms of the Securities
Escrow Agreement.
“
Maverick
Shares
” means the Company Shares issued and sold by the Company to Parent pursuant to the Securities Purchase Agreement.
“
Securities
Purchase Agreement
” means the Securities Purchase Agreement dated as of November 29, 2018, by and among the Company and
Parent.
“
Securities
Escrow Agreement
” means the Escrow Agreement dated as of November 29, 2018, by and among the Company, Parent, and the
Escrow Agent.
(ii) The
definition of “
Acquisition Proposal
” set forth in
Section 1.01
of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
“
Acquisition
Proposal
” means any inquiry, proposal, offer, or indication of interest for or relating to (in one transaction or a series
of related transactions) any of the following: any direct or indirect acquisition or purchase (including by any license or lease)
by any Person of (a) assets (including voting equity securities of any of the Company’s Subsidiaries, but excluding
sales of assets in the ordinary course of business) or businesses of the Company and its Subsidiaries that constitute 15% or more
of the fair market value of the assets of the Company and its Subsidiaries on a consolidated basis or that generate 15% or more
of the aggregate revenues or net income of the Company and its Subsidiaries on a consolidated basis, or (b) beneficial ownership
of 15% or more of any class of voting equity securities of the Company or of any of its Subsidiaries, the assets or business of
which constitutes 15% or more of the fair market value of the assets of the Company and its Subsidiaries on a consolidated basis
or that generates 15% or more of the aggregate revenues or net income of the Company and the Company’s Subsidiaries on a
consolidated basis;
provided
that the term “Acquisition Proposal” shall not include the Transactions, the CF
Sale, or the transactions contemplated by Securities Purchase Agreement, including the issuance and sale of the Maverick Shares
by the Company to Parent”.
(c)
Amendments
to Sections 1.02 of the Merger Agreement
.
Section 1.02
of the Merger Agreement is hereby amended by deleting the defined
terms “Escrow Agent” and “Escrow Agreement” in their entirety and substituting therefor the new defined
terms “Fidelity Title” and “Initial Escrow Agreement”, respectively, and inserting the same in the appropriate
alphabetical locations.
(d)
Amendments
to Sections 1.01. 4.05(a), 4.06(a), 5.03, 5.04, and 9.04 of the Merger Agreement
. All references to the “Escrow Agreement”
in the definition of “
Transactions
” set forth in
Section 1.01
of the Merger Agreement and in
Sections
4.05(a)
,
4.06(a)
,
5.03
,
5.04
, and
9.04
of the Merger Agreement from and after the date of this
Amendment are hereby amended to read “Securities Escrow Agreement”.
(e)
Amendments
to Section 3.02(a) of the Merger Agreement
. The third sentence of
Section 3.02(a)
of the Merger Agreement is hereby
amended and restated in its entirety to read as follows:
“On the Closing Date and prior
to the filing of the Articles of Merger, Parent shall deposit, or cause to be deposited, with the Paying Agent cash in an amount
sufficient to permit payment of the aggregate Merger Consideration payable pursuant to
Section 3.01
for the benefit of the
holders of Company Shares (other than Company Restricted Shares), for payment in accordance with this
Article III
through
the Paying Agent (the “
Payment Fund
”).”
(f)
Amendments
to Section 4.04(b) of the Merger Agreement
.
Section 4.04(b)
of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
“(b) Except
for the Company Equity Plans, the Company Stock Options, the Securities Purchase Agreement, the Securities Escrow Agreement, and
this Agreement, there are no outstanding (i) options, warrants, or other rights, Contracts, arrangements, or commitments of
any character relating to the issued or unissued capital stock of the Company or obligating the Company to issue or sell any shares
of capital stock of, or other equity interests in, the Company, or (ii) restricted shares, restricted share units, stock appreciation
rights, performance shares, contingent value rights, “phantom” stock, or similar securities or rights that are derivative
of or provide economic benefits based, directly or indirectly, on the value or price of any capital stock or other voting or ownership
interests in the Company.”
(g)
Amendments
to Section 4.04(d) of the Merger Agreement
.
Section 4.04(d)
of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
“(d) There
are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem, or otherwise acquire
any Company Shares or any other equity securities of the Company (other than the Securities Purchase Agreement, the Securities
Escrow Agreement, and this Agreement).”
(h)
Amendments
to Section 4.04(e) of the Merger Agreement
.
Section 4.04(e)
of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
“(e) There
are no voting trusts or other Contracts to which the Company or any of its Subsidiaries is a party with respect to the voting of
any capital stock of, or other equity interest in, the Company or any of its Subsidiaries (other than the Securities Purchase Agreement
and the Securities Escrow Agreement).”
(i)
Amendments
to Section 4.11(a) of the Merger Agreement
. Clause (a) of
Section 4.11
of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
“(a) the Company and its Subsidiaries
have conducted their business in all material respects in the ordinary course of business consistent with past practice (except
for the execution, delivery, and performance of the Securities Purchase Agreement, the consummation of the transactions contemplated
thereby, including the issuance and sale of the Maverick Shares by the Company to Parent, any actions required or otherwise expressly
permitted or contemplated by the Securities Purchase Agreement, and any other action taken by the Company and its Subsidiaries
from and after the date of this Agreement that would not constitute a breach of
Section 6.01
),”.
(j)
Amendments
to Section 5.09 of the Merger Agreement
. The second sentence of
Section 5.09
of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
“Other than the Maverick Shares,
neither Parent nor Merger Sub nor any of Parent’s or Merger Sub’s respective Affiliates owns (directly or indirectly,
beneficially or of record) any Company Shares or holds any rights to acquire or vote any Company Shares, except pursuant to this
Agreement, except that Eric Persson individually owns 1,790 Company Shares.”
(k)
Amendments
to Section 6.01(a) of the Merger Agreement
.
Section 6.01(a)
of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
“(a) From
the date of this Agreement until the earliest of the Effective Time or the termination of this Agreement in accordance with its
terms, except (v) as required or otherwise expressly permitted or contemplated by this Agreement (including the CF Sale and the
other transactions contemplated by the CF Sale Agreement), (w) for the execution, delivery, and performance of the Securities Purchase
Agreement, the consummation of the transactions contemplated thereby, including the issuance and sale of the Maverick Shares by
the Company to Parent, and any actions required or otherwise expressly permitted or contemplated by the Securities Purchase Agreement,
(x) as required by Law, (y) as set forth in
Section 6.01(a)
of the Company Disclosure Letter, or (z) with the prior written
consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed), the Company shall, and shall cause
each of its Subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice
and shall use its reasonable best efforts to (i) preserve substantially intact the assets and business organization of the
Company and its Subsidiaries, (ii) preserve in all material respects the current beneficial relationships of the Company and
its Subsidiaries with any Persons (including suppliers, partners, contractors, distributors, sales representatives, customers,
licensors, licensees and Governmental Authorities) with which the Company or any of its Subsidiaries has material business relations,
and (iii) keep available in all material respects the services of the present officers and key employees of the Company and
its Subsidiaries;
provided
,
however
, that no action taken by the Company or its Subsidiaries with respect to matters
specifically addressed by
Section 6.01(b)
shall be deemed a breach of this
Section 6.01(a)
unless such action would
constitute a breach of
Section 6.01(b)
.”
(l)
Amendments
to Section 6.01(b) of the Merger Agreement
. The portion of the first sentence of
Section 6.01(b)
of the Merger
Agreement up to (and including) the colon is hereby amended and restated in its entirety to read as follows:
“From the date of this Agreement
until the earliest of the Effective Time or the termination of this Agreement in accordance with its terms, except (v) as required
or otherwise expressly permitted or contemplated by this Agreement (including the CF Sale and the other transactions contemplated
by the CF Sale Agreement), (w) for the execution, delivery, and performance of the Securities Purchase Agreement, the consummation
of the transactions contemplated thereby, including the issuance and sale of the Maverick Shares by the Company to Parent, and
any actions required or otherwise expressly permitted or contemplated by the Securities Purchase Agreement, (x) as required by
Law, (y) as set forth in
Section 6.01(b)
of the Company Disclosure Letter, or (z) with the prior written consent of Parent
(which consent shall not be unreasonably withheld, conditioned, or delayed), the Company shall not, and shall cause each of its
Subsidiaries not to:”.
(m)
Amendments
to Section 8.03(c) of the Merger Agreement
.
Section 8.03(c)
of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
“(c) In
the event that this Agreement is terminated by (i) the Company pursuant to
Section 8.01(b)
at a time when the Company would
also have the right to terminate this Agreement pursuant to
Section 8.01(g)
or
Section 8.01(i)
and at the time of
such termination, all of the conditions to Closing set forth in
Section 7.01
and
Section 7.02
have been satisfied
or waived (other than those conditions (A) that, by their nature, can only be satisfied or waived at the Closing, but which
would be capable of being satisfied if the Closing Date were the date of such termination, or (B) that are not satisfied or
waived as a result of a breach by Parent or Merger Sub of this Agreement), (ii) the Company pursuant to
Section 8.01(g)
,
or (iii) the Company pursuant to
Section 8.01(i)
, then Parent shall pay to the Company the Parent Termination Fee in accordance
with
Section 8.3(d)
and the terms of the Securities Escrow Agreement.”
(n)
Amendments
to Section 8.03(d) of the Merger Agreement
.
Section 8.03(d)
of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
“(d) The
Company, Parent, and Merger Sub each acknowledge that the agreements contained in this
Section 8.03
are an integral part
of this Agreement and the Transactions, and that, without these agreements, the other Parties would not enter into this Agreement.
Except with respect to
Section 8.03(h)
, in which case the Company Termination Fee shall be paid by the Company in accordance
with
Section 6.04(d)
, in the event that the Company Termination Fee or Expense Reimbursement, as applicable, is payable
by the Company, the Company Termination Fee or Expense Reimbursement, as applicable, shall be paid by the Company as directed by
Parent in writing, in immediately available funds promptly following (and in any event within two Business Days after) the date
of the event giving rise to the obligation to make such payment. In the event that the Parent Termination Fee is payable by the
Parent, Parent will forfeit to the Company all of the Maverick Shares in satisfaction of the Parent Termination Fee, and the Company
will upon receipt thereof pay to Parent an amount equal to the Cash Payment (as defined in the Securities Purchase Agreement),
in each case in accordance with the terms of the Securities Purchase Agreement and the Securities Escrow Agreement. In no event
will Parent or Merger Sub or the Company, as applicable, be entitled to both the payment of the Company Termination Fee or the
Parent Termination Fee, respectively, and specific performance of this Agreement. In the event that that this Agreement is terminated
in accordance with this
Article VIII
and the Parent Termination Fee is not payable by Parent, the Company will purchase
from Parent, and Parent will sell to the Company, all of the Maverick Shares for a cash purchase price equal to the Purchase Price
(as defined in the Securities Purchase Agreement) in accordance with the terms of the Securities Purchase Agreement and the Securities
Escrow Agreement. The Parties expressly acknowledge and agree that (i) in light of the difficulty of accurately determining actual
damages with respect to the foregoing, upon any such termination of this Agreement, the payment of the Company Termination Fee
or Parent Termination Fee pursuant to this
Section 8.03
, which constitutes a reasonable estimate of the monetary damages
that will be suffered by Parent and Merger Sub or the Company, respectively, by reason of breach or termination of this Agreement,
shall be in full and complete satisfaction of any and all monetary damages of Parent and Merger Sub or the Company, as applicable,
arising out of or related to this Agreement, the Merger or the other Transactions (including any breach by the Parties), the termination
of this Agreement, the failure to consummate the Merger or the other Transactions, and any claims or Actions under applicable Law
arising out of any such breach, termination or failure, and (ii) in no event shall Parent or Merger Sub or the Company, as applicable,
be entitled to seek or obtain any recovery or judgment in excess of the Company Termination Fee or the Parent Termination Fee,
respectively, and in no event shall a Party be entitled to seek or obtain any other damages of any kind for, or with respect to,
this Agreement or the Transactions (including any breach by a Party), the termination of this Agreement, the failure to consummate
the Merger or the other Transactions, or any claims or Actions under applicable Law arising out of any such breach, termination,
or failure;
provided
,
however
, that this
Section 8.03
shall not limit the right of the Parties to specific
performance of this Agreement pursuant to
Section 9.05
prior to the termination of this Agreement in accordance with its
terms.”
(a)
References
to the Merger Agreement
. Each reference to “hereof”, “hereunder”, “herein”, and “hereby”
and each other similar reference and each reference to “this Agreement” and each other similar reference contained
in the Merger Agreement shall, from and after the execution of this Amendment, refer to the Merger Agreement as amended by this
Amendment. Notwithstanding the foregoing, references to the date of the Merger Agreement, as amended hereby, shall in all instances
continue to refer to September 18, 2018, and references to “the date hereof” and “the date of this Agreement”
shall continue to refer to September 18, 2018.
(b)
Modification;
Full Force and Effect
. Except as expressly amended by this Amendment, the terms, representations, warranties, covenants, and
other provisions of the Merger Agreement are and shall continue to be in full force and effect in accordance with their respective
terms.
(c)
Other
Miscellaneous Terms
. The provisions of
Article IX
of the Merger Agreement shall apply
mutatis mutandis
to this
Amendment, and to the Merger Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms
therein as modified hereby.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK]
IN WITNESS WHEREOF, Parent,
Merger Sub, and the Company have caused this Amendment to be executed as of the date first written above by their respective officers
thereunto duly authorized.
|
NEVADA GOLD & CASINOS, INC.
|
|
|
|
|
By:
|
/s/ Michael P. Shaunnessy
|
|
|
Name: Michael P. Shaunnessy
|
|
|
Title: President & CEO
|
|
|
|
|
MAVERICK CASINOS LLC
|
|
|
|
|
By:
|
/s/ Eric Persson
|
|
|
Name: Eric Hans Persson
|
|
|
Title: Manager
|
|
|
|
|
MAVERICK CASINOS MERGER SUB, INC.
|
|
|
|
|
By:
|
/s/ Eric Persson
|
|
|
Name: Eric Hans Persson
|
|
|
Title: Director
|
[Signature page to Amendment No. 1 to Agreement
and Plan of Merger]
Exhibit 10.1
EXECUTION COPY
SECURITIES
PURCHASE AGREEMENT
THIS SECURITIES PURCHASE
AGREEMENT (this “
Agreement
”), dated as of November 29, 2018, is by and between Nevada Gold & Casinos, Inc.,
a Nevada corporation (the “
Company
”), and Maverick Casinos LLC, a Nevada limited liability company (“
Buyer
”).
WHEREAS, the Company, Buyer,
and Maverick Casinos Merger Sub, Inc., a Nevada corporation and a wholly owned subsidiary of Buyer (“
Merger Sub
”),
are parties to an Agreement and Plan of Merger dated as of September 18, 2018 (the “
Existing Merger Agreement
”),
pursuant to which Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation
and becoming a wholly-owned subsidiary of Buyer (the “
Merger
”), upon the terms and subject to the conditions
set forth in the Merger Agreement;
WHEREAS, in order to facilitate
and avoid delays associated with obtaining the approvals of the Washington State Gambling Commission required in order to consummate
the Merger, the Company desires to issue and sell to Buyer, and Buyer desires to purchase from the Company, 890,390 shares of the
Company’s common stock, par value $0.12 per share (such shares, the “
Shares
”), representing 5.0% of the
outstanding shares of the Company’s common stock after giving effect to the issuance and sale of the Shares, on the terms
and subject to the conditions set forth herein;
WHEREAS, a portion of the
consideration payable by Buyer for the Shares will be funded by the release of all funds held in escrow pursuant to the Escrow
Agreement dated as of September 18, 2018 (the “
Initial Escrow Agreement
”), by and among the Company, Buyer,
and Fidelity National Title Agency of Nevada, Inc., a Nevada corporation dba Fidelity National Title Group, as escrow agent (“
Fidelity
Title
”);
WHEREAS, concurrently with
the execution of this Agreement, the Company, Buyer, and Mutual of Omaha Bank (the “
Escrow Agent
”), are entering
into the Escrow Agreement dated as of November 29, 2018 (as amended, restated, supplemented, or otherwise modified from time to
time, the “
Securities Escrow Agreement
”), pursuant to which, among other things, the Shares will be deposited
with the Escrow Agent into a segregated escrow account, to be held, released, and disposed of by the Escrow Agent in accordance
with the terms of this Agreement, the Merger Agreement, and the Securities Escrow Agreement; and
WHEREAS, concurrently with
the execution of this Agreement, the Company, Buyer, and Merger Sub are amending the Existing Merger Agreement (the Existing Merger
Agreement, as so amended, and as it may be further amended, restated, supplemented, or otherwise modified from time to time, the
“
Merger Agreement
”), pursuant to Amendment No. 1 to the Merger Agreement dated as of November 29, 2018 (“
Amendment
No. 1 to the Merger Agreement
”), to among other things, provide that (x) in the event that the Merger Agreement is terminated
prior to the consummation of the Merger and Buyer is required to pay the Parent Termination Fee (as defined in the Merger Agreement)
to the Company pursuant to the terms of the Merger Agreement, Buyer will forfeit to the Company all of the Shares in satisfaction
of the Parent Termination Fee, and the Company will pay to Buyer an amount equal to the Cash Payment (as defined below), and (y)
in the event the Merger Agreement is terminated prior to the consummation of the Merger and Buyer is not required to pay the Parent
Termination Fee to the Company pursuant to the terms of the Merger Agreement, the Company will purchase from Buyer all of the Shares
for the Purchase Price (as defined below);
NOW, THEREFORE, in consideration
of the foregoing premises and the representations, warranties, covenants, and agreements set forth herein, as well as other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby,
the Company and Buyer hereby agree as follows:
1.
Purchase
and Sale of Shares
. Subject to the terms and conditions set forth herein, at the Closing, the Company agrees to issue and sell
the Shares to Buyer, free and clear of any liens, pledges, security interests, and other encumbrances (collectively, “
Liens
”),
other than Liens imposed by applicable federal and state securities laws and restrictions set forth in this Agreement and the Securities
Escrow Agreement, and Buyer agrees to purchase the Shares from the Company, for an aggregate cash purchase price equal to $2,154,743.80
(the “
Purchase Price
”).
2.
Closing;
Payment of Purchase Price
.
(a)
Time;
Purchase Price
. Subject to the terms and conditions set forth herein, the closing of the purchase, sale, and issuance of the
Shares (the “
Closing
”) and the deliveries required thereby shall occur on the date of this Agreement. At the
Closing, the Company will issue and sell the Shares to Buyer upon receipt by the Company of the entire Purchase Price in cash as
provided in
Section 2(b)(i)
and
2(b)(ii)
.
(b)
Closing
Deliveries
. The Closing shall be completed when each of the following has occurred:
(i) Buyer
and the Company shall have caused Fidelity Title to release and pay all funds held in escrow by Fidelity Title under the Initial
Escrow Agreement to the Company, by wire transfer of immediately available funds to an account designated in writing by the Company;
(ii) Buyer
shall have delivered to the Company an amount equal the Purchase Price, less the amount released and paid by Fidelity Title to
the Company pursuant to
Section 2(b)(i)
(the “
Cash Payment
”), by wire transfer of immediately available
funds to an account designated in writing by the Company;
(iii) (x)
the Company shall have given American Stock Transfer & Trust Company, LLC, the Company’s transfer agent, irrevocable
instructions to issue to Buyer a certificate representing the Shares (the “
Stock Certificate
”), registered in
the name of Buyer, and to deliver the Stock Certificate to the Escrow Agent on an expedited basis, and (y) Buyer shall have delivered
to the Escrow Agent a stock power, duly executed in blank, and a transfer of ownership form, duly executed in blank, in a form
acceptable to the Company’s transfer agent, in respect of all of the Shares (the documents described in this clause (y) are
referred to herein collectively as the “
Share Transfer Documents
”), all of which shall be held by the Escrow
Agent in a segregated escrow account (the “
Escrow Account
”), and shall be held, released, and disposed of by
the Escrow Agent in accordance with the terms of this Agreement, the Merger Agreement, and the Securities Escrow Agreement;
(iv) the
Company, Buyer, and the Escrow Agent shall have entered into the Securities Escrow Agreement; and
(v) the
Company, Buyer, and Merger Sub shall have entered into Amendment No. 1 to the Merger Agreement.
3.
Representations
and Warranties of the Company
. The Company hereby represents and warrants to Buyer as follows:
(a)
Authorization
.
The Company has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder,
and to consummate the transactions contemplated hereby. The execution, delivery, and performance by the Company of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all requisite corporate
action on behalf of the Company, including by the board of directors of the Company. No other corporate proceedings on the part
of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution, and delivery by
Buyer, constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium,
or other similar laws relating to or affecting creditors’ rights generally and except as such enforceability is subject to
general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) (the “
Bankruptcy
and Equity Exception
”).
(b)
Shares
.
The Shares have been duly authorized and, when issued, delivered, and paid for in the manner set forth in this Agreement, will
be validly issued, fully paid, and nonassessable.
(c)
No
Conflict
. The execution and delivery by the Company of this Agreement, and the consummation by the Company of the transactions
contemplated hereby, do not and will not, directly or indirectly (with or without notice or lapse of time or both), and the compliance
by the Company with its obligations hereunder will not, directly or indirectly (with or without notice or lapse of time or both),
(i) result in a violation or breach of, or conflict with, the Company’s articles of incorporation or bylaws, (ii) conflict
with or violate any law applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or
any of its subsidiaries is bound, (iii) result in any violation or breach of, or conflict with, any provisions of, or constitute
(with or without notice or lapse of time, or both) a default (or give rise to any right of purchase, termination, amendment, acceleration,
or cancellation) under, or result in the loss of any benefit under, or result in the triggering of any payments pursuant to, any
of the terms, conditions, or provisions of, any material contract to which the Company or any of its subsidiaries is a party or
by which it or any of its properties or assets may be bound, or (iv) result in the creation of any material Lien on any property
or asset of the Company or any of its subsidiaries, except, with respect to clauses (ii) and (iii), for any such conflict, violation,
breach, default, right of purchase, termination, amendment, acceleration or cancellation, loss of any benefit, or payment that
would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d)
No
Consents or Approvals
. No consent, approval, order, or authorization of, or registration, qualification, designation, or filing
with, or notification to, any governmental authority is required on the part of the Company in connection with the execution, delivery,
and performance of this Agreement, or the consummation by the Company of the transactions contemplated hereby, other than (i) the
applicable requirements of the Securities and Exchange Act of 1934, as amended (the “
Exchange Act
”), and other
applicable federal securities laws, and (ii) such other consents, approvals, orders, authorizations, registrations, qualifications,
designations, filings, or notifications that, if not obtained, made or given, would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e)
NO
OTHER REPRESENTATIONS OR WARRANTIES
. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN THIS
Section
3
, NEITHER THE COMPANY NOR ANY OTHER PERSON HAS MADE OR MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WRITTEN
OR ORAL. THE COMPANY HEREBY DISCLAIMS ANY SUCH OTHER REPRESENTATION OR WARRANTY, WHETHER BY THE COMPANY, ANY OF ITS SUBSIDIARIES,
OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR ANY OTHER PERSON, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO BUYER OR ANY OTHER
PERSON OF ANY DOCUMENTATION OR OTHER WRITTEN OR ORAL INFORMATION BY THE COMPANY, ANY OF ITS SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE
REPRESENTATIVES OR ANY OTHER PERSON, AND EXCEPT IN THE CASE OF FRAUD, NEITHER THE COMPANY NOR ANY OTHER PERSON WILL HAVE OR BE
SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION TO BUYER OR ANY OTHER PERSON RESULTING FROM SUCH DELIVERY OR DISCLOSURE,
OR BUYER’S USE OF ANY SUCH DOCUMENTATION OR OTHER INFORMATION.
4.
Representations
and Warranties of the Buyer
.
Buyer hereby represents
and warrants to the Company as follows:
(a)
Authorization
.
Buyer has all requisite limited liability company power and authority to execute and deliver this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance by Buyer of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly and validly authorized by all requisite limited liability
company action on behalf of Buyer and no other limited liability company proceedings on the part of Buyer are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered
by Buyer and, assuming due authorization, execution, and delivery by the Company, constitutes a legal, valid, and binding obligation
of Buyer enforceable against Buyer in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(b)
No
Conflict
. The execution and delivery by Buyer of this Agreement, and the consummation by Buyer of the transactions contemplated
hereby, do not and will not, directly or indirectly (with or without notice or lapse of time or both), and the compliance by Buyer
with its obligations hereunder will not, directly or indirectly (with or without notice or lapse of time or both), (i) result in
a violation or breach of, or conflict with, the articles of organization, operating agreement, or other organizational documents
of Buyer, (ii) conflict with or violate any law applicable to Buyer or by which any property or asset of Buyer is bound, (iii) result
in a violation or breach, or conflict with, any provision of, or constitute (with or without notice or lapse of time, or both)
a default (or give rise to any right of purchase, termination, amendment, acceleration, or cancellation) under, or result in the
loss of any benefit under, or result in the triggering of any payments pursuant to, any of the terms, conditions, or provisions
of, any material contract to which Buyer is a party or by which any of its properties or assets may be bound, or (iv) result
in the creation of a Lien on any property or asset of Buyer, except, with respect to clauses (ii), (iii) and (iv), as would
not, individually or in the aggregate, reasonably be expected to prevent, materially impair, or material delay the ability of Buyer
to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(c)
No
Consents or Approvals
. No consent, approval, order, or authorization of, or registration, qualification, designation, or filing
with, or notification to, any governmental authority is required on the part of Buyer in connection with the execution, delivery,
and performance of this Agreement, or the consummation by Buyer of the transactions contemplated hereby, other than (i) the
applicable requirements of the Exchange Act and other applicable federal and state securities laws, and (ii) such other consents,
approvals, orders, authorizations, registrations, qualifications, designations, filings, or notifications that, if not obtained,
made or given, would not, individually or in the aggregate, reasonably be expected to prevent, materially impair, or materially
delay the ability of Buyer to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(d)
Ownership
of Shares
. Neither Buyer nor any of its affiliates owns (directly or indirectly, beneficially or of record) any shares of the
Company’s common stock or holds any rights to acquire or vote any shares of the Company’s common stock, except pursuant
to this Agreement and the Merger Agreement, except that Eric Persson individually owns 1,790 shares of the Company’s common
stock.
(e)
Investment
Representations
.
(i) Buyer
and each member of Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act of 1933, as amended (the “
Securities Act
”). Buyer agrees to furnish any additional
information requested by the Company to assure compliance with applicable federal and state securities laws in connection with
the purchase and sale of the Shares.
(ii) Buyer
is purchasing the Shares solely for its own account for the purpose of investment and not with a view to, or for sale in connection
with, any distribution thereof in violation of federal or state securities laws. Buyer does not have a present intention to sell
any of the Shares, nor a present arrangement (whether or not legally binding) or intention to effect any distribution of any of
the Shares to or through any person or entity in violation of federal or state securities laws. Buyer acknowledges that it (i)
has such knowledge, skill, and experience in business, financial, and investment matters that it is capable of evaluating the merits
and risks of an investment in the Company, (ii) is able to bear the financial risks associated with an investment in the Company,
and (iii) has been given access to such information concerning the Company and to the officers of the Company as it has deemed
necessary or appropriate to enable it to make an informed investment decision concerning the purchase of the Shares.
(iii) Buyer
understands that the Shares are being offered and sold on reliance on specific exemptions from the registration requirements of
federal and state securities laws and that the Company is relying in part upon the truth and accuracy of the representations and
warranties made by Buyer in this Agreement in order to determine the availability of such exemptions. Buyer understands that no
federal or state agency or any government or governmental agency has passed upon the merits or risks of an investment in the Shares
or made any finding or determination concerning the fairness or advisability of this investment.
(iv) Buyer
understands that the Shares are “restricted securities” under applicable federal securities laws and that the Securities
Act and the rules of the United States Securities and Exchange Commission (the “
SEC
”) provide in substance that
Buyer may dispose of the Shares only pursuant to an effective registration statement under the Securities Act or an exemption therefrom,
and Buyer understands that the Company has no obligation or intention to register any of the Shares, or to take action so as to
permit sales pursuant to the Securities Act. Buyer acknowledges that it is familiar with the nature of the limitations imposed
by the Securities Act and the rules and regulations thereunder on the transfer of securities.
(v) Buyer
acknowledges that neither the Company nor any other person or entity offered to sell the Shares to it by means of any form of general
solicitation or advertising, including (A) any advertisement, article, notice, or other communication published in any newspaper,
magazine, or similar media or broadcast over television or radio, or (B) any seminar or meeting whose attendees were invited by
any general solicitation or general advertising.
(vi) With
the assistance of Buyer’s own professional advisors, to the extent that Buyer has deemed appropriate, Buyer has made its
own legal, tax, accounting, and financial evaluation of the merits and risks of an investment in the Shares and the consequences
of this Agreement. Buyer has considered the suitability of the Shares as an investment in light of its own circumstances and financial
condition and Buyer is able to bear the risks associated with an investment in the Shares and its authority to invest in the Shares.
Buyer recognizes that investing in the Shares involves substantial risks, and has taken full cognizance of and understands all
of the risk factors related to the acquisition of the Shares. Buyer has not relied upon any representations (other than the representations
and warranties of the Company set forth in
Section 3
) or other information from the Company or any of its agents or representatives.
5.
Covenants
of the Parties
.
(a)
Legends
.
Buyer acknowledges and agrees that each certificate representing the Shares will bear a legend in substantially the following form:
“THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF
EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (2) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND SUCH LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS OF A SECURITIES PURCHASE AGREEMENT DATED AS OF NOVEMBER 29, 2018, AS IT MAY BE AMENDED FROM TIME TO TIME, AND AN ESCROW
AGREEMENT DATED AS OF NOVEMBER 29, 2018, AS IT MAY BE AMENDED FROM TIME TO TIME, COPIES OF WHICH ARE ON FILE WITH THE SECRETARY
OF THE COMPANY.”
(b)
Schedule
13D
. Buyer agrees to timely file a Schedule 13D with the SEC as required by Section 13(d) of the Exchange Act. Buyer shall
provide the Company a copy of such Schedule 13D a reasonable time in advance of the filing thereof with the SEC.
(c)
Restrictions
of Transfer
. Except as set forth in
Section 7
, Buyer will not sell, assign, dispose of, exchange, pledge, encumber,
hypothecate, or otherwise transfer (each, a “
Transfer
”) any Shares, or any interest therein, or otherwise permit
any Liens to be created on any Shares. In addition, so long as the Shares are held in the Escrow Account they may not be taken
or reached by legal or equitable process in satisfaction of any debt or other liability of Buyer. Any purported Transfer of any
Shares in violation of this
Section 5(c)
shall be void
ab initio
.
(d)
Voting
.
With respect to all matters presented to the Company’s stockholders, Buyer shall vote all of the Shares then held by Buyer
in the same manner and in the same proportion (rounded to the nearest whole share) as shares of common stock of the Company that
are not held by Buyer are voted.
6.
Effects
of Merger
. If the Merger is consummated, in accordance with the terms of the Merger Agreement, the Company and Buyer shall
deliver a joint written instruction to the Escrow Agent to deliver all of the Shares (and the Stock Certificate and Share Transfer
Documents) held in the Escrow Account to Buyer, and the Shares, like all other shares of common stock of the Company owned, directly
or indirectly, by Buyer or Merger Sub immediately prior to the Effective Time (as defined in the Merger Agreement), shall be cancelled
and shall cease to exist, without any conversion thereof and no payment or distribution shall be made with respect thereto.
7.
Effects
of Termination of Merger Agreement
.
(a) Except
as provided below, in the event the Merger Agreement is terminated prior to the Effective Time, the Company will purchase from
Buyer, and Buyer will sell to the Company, all of the Shares for a cash purchase price equal to the Purchase Price. As promptly
as practicable (and in any event within two Business Days (as defined in the Merger Agreement)) following any such termination
of the Merger Agreement, (i) Buyer and the Company shall deliver a joint written instruction to the Escrow Agent to deliver all
of the Shares (and the Stock Certificate and Share Transfer Documents) held in the Escrow Account to the Company or its designee,
(ii) Buyer shall deliver to the Company all such other documents and instruments as are necessary to transfer to the Company (including,
if requested by the Company, a transfer of ownership form, duly executed in blank (with a medallion guarantee), in a form acceptable
to the Company’s transfer agent, in respect of all of the Shares), and shall be deemed to have transferred, and to have represented
and warranted to the Company that it has transferred, to the Company, all of the Shares, free and clear of all Liens, other than
Liens imposed by applicable federal and state securities laws, and shall cease to have any rights with respect to the Shares, except
the right to receive the consideration to be paid to Buyer pursuant to clause (iii) below, and (iii) upon receipt of all of the
Shares (and the Stock Certificate and Share Transfer Documents), the Company shall deliver to Buyer an amount equal to the Purchase
Price, by wire transfer of immediately available funds to an account designated by Buyer.
(b) Notwithstanding
anything to the contrary set forth in
Section 9(a)
, in the event that the Merger Agreement is terminated prior to the Effective
Time and Buyer is required to pay the Parent Termination Fee pursuant to the terms of the Merger Agreement, Buyer will forfeit
to the Company all of the Shares in satisfaction of the Parent Termination Fee, and the Company will upon receipt thereof pay to
Buyer an amount equal to the Cash Payment. In such case, as promptly as practicable (and in any event within two Business Days)
following the date of the event giving rise to the obligation of Buyer to pay the Parent Termination Fee, (i) Buyer and the Company
shall deliver a joint written instruction to the Escrow Agent to deliver all of the Shares (and the Stock Certificate and Share
Transfer Documents) held in the Escrow Account to the Company or its designee, (ii) Buyer shall deliver all such other documents
and instruments as are necessary to transfer to the Company (including, if requested by the Company, a transfer of ownership form,
duly executed in blank (with a medallion guarantee), in a form acceptable to the Company’s transfer agent, in respect of
all of the Shares), and shall be deemed to have transferred, and to have represented and warranted to the Company that it has transferred,
to the Company, all of the Shares, free and clear of all Liens, other than Liens imposed by applicable federal and state securities
laws, and shall cease to have any rights with respect thereto, except the right to receive the consideration to be paid to Buyer
pursuant to clause (iii) below, and (iii) upon receipt of all of the Shares (and the Stock Certificate and Share Transfer Documents),
the Company will pay to Buyer an amount equal to the Cash Payment, by wire transfer of immediately available funds to an account
designated by Buyer.
8.
Severability
.
If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public
policy or the application of this Agreement to any person or entity or circumstance is invalid or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially
adverse to either party. To such end, the provisions of this Agreement are agreed to be severable. Upon such determination that
any term or other provision is invalid, illegal, or incapable of being enforced, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order
that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
9.
Assignment
.
Neither this Agreement nor any of the rights, interests, or obligations under this Agreement may be assigned, in whole or in part,
by operation of law or otherwise by either of the parties without the prior written consent of the other party. Any purported assignment
in violation of this
Section 9
will be null and void
ab initio
. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
10.
Expenses.
All fees, costs, and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including legal
fees, shall be paid by the party incurring such expenses.
11.
Notices
.
Any notice or other communication provided for herein or given hereunder to either party shall be given in the manner contemplated
by the Merger Agreement.
12.
Waiver
.
No party may waive any of the terms or conditions of this Agreement except by a duly signed writing referring to the specific provision
to be waived.
13.
Entire
Agreement
. This Agreement, together with the Merger Agreement, the Securities Escrow Agreement, and the Confidentiality Agreement
(as defined in the Merger Agreement) constitute the entire agreement among the parties with respect to the subject matter hereof,
and supersede all prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter
hereof (other than the Confidentiality Agreement, which will terminate at the Closing (under and as defined in the Merger Agreement)).
14.
Parties
in Interest
. This Agreement shall be binding upon and inure solely to the benefit of each party, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person or entity any right, benefit, or remedy of any nature
whatsoever under or by reason of this Agreement.
15.
Governing
Law; Jurisdiction.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflicts
of law rules of such state that would direct a matter to another jurisdiction.
(b) Each
of the parties (i) agrees that any action, suit, or proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with this Agreement or the transactions contemplated hereby (whether brought by either party or any of
its affiliates or against any party or any of its affiliates) shall be brought, heard, and determined exclusively in the state
courts located in the State of Nevada or, if such courts shall not have jurisdiction, any of the federal courts of the United States
of America located in the State of Nevada, (ii) irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such action, suit, or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue of any such action, suit, or proceeding in any
such court or that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum, (iii)
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court,
and (iv) agrees not to bring any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby in any other court. The parties agree that a final trial court judgment in any such action, suit, or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law;
provided
,
however
, that nothing in the foregoing shall restrict either party’s rights to seek any post-judgment relief regarding,
or any appeal from, such final trial court judgment.
16.
Waiver
of Jury Trial
. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT
OR THE TRANSACTIONS COTENMPLATED HEREBY.
17.
Specific
Performance
. The parties agree that irreparable damage would occur in the event any provision of this Agreement were not performed
in accordance with the terms hereof and that money damages would not be a sufficient remedy for any breach of this Agreement, and
accordingly, the parties shall be entitled to specific performance of the terms hereof, without any requirement to post bond, in
addition to any other remedy to which they are entitled at law or equity. The parties further agree not to assert that a remedy
of specific enforcement is unenforceable, invalid, contrary to law, or inequitable for any reason, nor to assert that a remedy
of monetary damages would provide an adequate remedy.
18.
Counterparts
.
This Agreement may be executed and delivered (including by facsimile or other form of electronic transmission) in separate counterparts,
each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same
agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK]
IN WITNESS WHEREOF, the
parties hereto have caused this Securities Purchase Agreement to be executed and delivered as of the day and year first written
above.
|
NEVADA GOLD & CASINOS, INC.
|
|
|
|
|
By:
|
/s/ Michael P. Shaunnessy
|
|
|
Name: Michael P. Shaunnessy
|
|
|
Title: President & CEO
|
|
|
|
|
MAVERICK CASINOS LLC
|
|
|
|
|
By:
|
/s/ Eric Persson
|
|
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Name: Eric Persson
|
|
|
Title: Manager
|
[Signature page to Securities Purchase Agreement]
Exhibit 10.2
EXECUTION COPY
ESCROW AGREEMENT
This Escrow Agreement (this
“
Agreement
”), dated as of November 29, 2018, is entered into by and among Nevada Gold & Casinos, Inc., a
Nevada corporation (the “
Company
”), Maverick Casinos LLC, a Nevada limited liability company (“
Parent
”),
and Mutual of Omaha Bank, as escrow agent (the “
Escrow Agent
”).
WITNESSETH
WHEREAS, Parent, the Company,
and Maverick Casinos Merger Sub, Inc., a Nevada corporation and a wholly owned subsidiary of Parent (“
Acquisition Corp.
”),
have entered into an Agreement and Plan of Merger dated as of September 18, 2018 (as amended by Amendment No. 1 to Agreement and
Plan of Merger Agreement dated as of November 29, 2018, and as it may be further amended, restated, supplemented, or otherwise
modified from time to time, the “
Merger Agreement
”), pursuant to which Acquisition Corp. will be merged with
and into the Company (the “
Merger
”), upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, concurrently with
the execution and delivery of this Agreement, the Company and Parent are entering into the Securities Purchase Agreement date as
of November 29, 2018 (as it may be amended, restated, supplemented, or otherwise modified from time to time, the “
Securities
Purchase Agreement
”), pursuant to which the Company is issuing and selling to Parent 890,390 shares of common stock,
par value $0.12, of the Company (the “
Escrow Shares
”);
WHEREAS, concurrently with
or promptly following the execution of this Agreement, the Company and Parent are depositing the Escrow Shares (and the Stock Certificate
(as defined below) and Share Transfer Documents (as defined below)) with the Escrow Agent into a segregated escrow account (the
“
Escrow Account
”), to be held, released, and disposed of by the Escrow Agent in accordance with the terms of
this Agreement; and
WHEREAS, the Escrow Agent
is willing to establish the Escrow Account on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration
of the mutual promises herein contained and for other good and valuable consideration, and intending to be legally bound, the parties
hereto agree as follows:
1.
Definitions
.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
For purposes of this Agreement:
(a) “
Business
Day
” means any day Escrow Agent is open for business, other than Saturday, Sunday, Federal Reserve Bank holiday or any
other day Escrow Agent is authorized by law to be closed.
(b) “
Cut-Off
Time
” means Escrow Agent’s designated time on any Business Day to receive instructions from a party or parties
to this Agreement and act upon it, which shall not in any event be earlier than 12:00 noon Mountain Time. If such instructions
are not received by the Escrow Agent’s Cut-Off Time, then such instructions shall be acted upon on the following Business
Day.
2.
Appointment
of Escrow Agent
. The Company and Parent hereby appoint the Escrow Agent to act as escrow agent hereunder and the Escrow Agent
hereby accepts such appointment.
3.
Deposit
of Escrow Shares
. Concurrently herewith, (a) the Company shall give American Stock Transfer & Trust Company, LLC, the Company’s
transfer agent, irrevocable instructions to issue a certificate representing the Escrow Shares (the “
Stock Certificate
”)
registered in the name of Parent and to deliver the Stock Certificate to the Escrow Agent on an expedited basis, and (b) Parent
shall deliver to the Escrow Agent a stock power, duly executed in blank, and a transfer of ownership form, duly executed in blank,
in a form acceptable to the Company’s transfer agent, in respect of all of the Shares (the documents described in this clause
(b) are referred to herein collectively as the “
Share Transfer Documents
”). Upon receipt, the Escrow Agent shall
acknowledge its receipt of the Stock Certificate and Share Transfer Documents. The Escrow Agent agrees to hold and dispose of the
Escrow Shares (and the Stock Certificate and Share Transfer Documents) in accordance with the terms and conditions of this Agreement.
4.
Voting
and Economic Rights
. Subject to the terms of the Securities Purchase Agreement, during the period in which the Escrow Shares
are retained in the Escrow Account, Parent shall be entitled to vote the Escrow Shares and to receive the economic benefit of any
dividends or other distributions paid or made with respect to the Escrow Shares unless and until the Escrow Shares have been delivered
to the Company as provided herein. Subject to the other terms of this Agreement, none of the Escrow Shares or any interest therein
may be sold, assigned, disposed of, pledged, encumbered, hypothecated, or otherwise transferred, or taken or reached by legal or
equitable process in satisfaction of any debt or other liability of Parent prior to the release of the Escrow Shares by the Escrow
Agent pursuant to the terms hereof. The parties agree that, for purposes of United States federal and other taxes based on income,
Parent shall be treated as the owner of the Escrow Shares and that Parent shall report the income, if any, that is earned on, or
derived from, the Escrow Shares as its income, in the taxable year or years in which such income is properly includible and pay
any taxes attributable thereto.
5.
Release
of Escrow Shares
.
(a) In
the event that the Merger Agreement is terminated prior to the effective time of the Merger and Parent is required to pay the Parent
Termination Fee pursuant to the terms of the Merger Agreement, Parent will forfeit to the Company all of the Escrow Shares in satisfaction
of the Parent Termination Fee in accordance with the terms of the Securities Purchase Agreement and the Merger Agreement, and Parent
and the Company shall promptly (and in any event within two Business Days) following the date of the event giving rise to the obligation
to make such payment deliver a joint written instruction to the Escrow Agent by the Cut-Off Time to deliver all of the Escrow Shares
(and the Stock Certificate and Share Transfer Documents) held in the Escrow Account to the Company or its designee. In such case,
the Company and Parent agree among each other to fulfill or comply with all of their respective obligations and covenants under
the Securities Purchase Agreement and the Merger Agreement related to the forfeiture by Parent of the Escrow Shares to the Company,
including (i) in the case of Parent, delivery of all such other documents and instruments to the Company as are necessary to transfer
to the Company all of the Escrow Shares (including, if requested by the Company, a transfer of ownership form, duly executed in
blank (with a medallion guarantee), in a form acceptable to the Company’s transfer agent, in respect of all of the Escrow
Shares), free and clear of all Liens (as defined in the Securities Purchase Agreement), other than Liens imposed by applicable
federal and state securities laws, and (ii) in the case of the Company, payment to Parent of an amount equal to the Cash Payment
(as defined in the Securities Purchase Agreement).
(b) In
the event the Merger Agreement is terminated in accordance with its terms prior to the effective time of the Merger and the Parent
Termination Fee is not payable, the Company will purchase from Parent, and Parent will sell to the Company, all of the Escrow Shares
for a cash purchase price equal to the Purchase Price (as defined in the Securities Purchase Agreement) in accordance with the
terms of the Securities Purchase Agreement and the Merger Agreement, and Parent and the Company shall promptly (and in any event
within two Business Days) following the date of termination deliver a joint written instruction to the Escrow Agent by the Cut-Off
Time to deliver all of the Escrow Shares (and the Stock Certificate and Share Transfer Documents) held in the Escrow Account to
the Company or its designee. In such case, the Company and Parent agree among each other to fulfill or comply with all of their
respective obligations and covenants under the Securities Purchase Agreement and the Merger Agreement related to the purchase and
sale of the Escrow Shares, including (i) in the case of Parent, delivery of all such other documents and instruments as are necessary
to transfer to the Company all of the Escrow Shares (including, if requested by the Company, a transfer of ownership form, duly
executed in blank (with a medallion guarantee), in a form acceptable to the Company’s transfer agent, in respect of all of
the Escrow Shares), free and clear of all Liens, other than Liens imposed by applicable federal and state securities laws, and
(ii) in the case of the Company, payment to Parent of an amount equal to the Purchase Price.
(c) If
the Merger is consummated, in accordance with the terms of the Merger Agreement, Parent and the Company will deliver a joint written
instruction on a given Business Day to the Escrow Agent by the Cut-Off Time to deliver all of the Escrow Shares (and the Stock
Certificate and Share Transfer Documents) held in the Escrow Account to Parent, and the Escrow Shares, like all other shares of
common stock owned, directly or indirectly, by Parent or Merger Sub immediately prior to the effective time of the Merger, shall
be cancelled and shall cease to exist, without any conversion thereof and no payment or distribution shall be made with respect
thereto pursuant to Section 3.02 of the Merger Agreement.
(d) Notwithstanding
anything to the contrary in this Agreement, the Escrow Agent shall dispose of all or a portion of the Escrow Shares (and the Stock
Certificate and Share Transfer Documents) held in the Escrow Account in accordance with a joint written instruction signed by Parent
and the Company, whether such disposition is pursuant to the terms of this Escrow Agreement or otherwise.
(e) Notwithstanding
anything to the contrary in this Agreement, the Escrow Agent shall promptly release all or any portion of the Escrow Shares (and
the Stock Certificate and Share Transfer Documents) held in the Escrow Account, at any time or from time to time, in accordance
with an Order (as defined below) that is presented to the Escrow Agent by Parent or the Company. The Escrow Agent shall promptly
upon receipt of any such Order comply with such Order. The Escrow Agent shall be entitled to act on any such Order without further
inquiry, question, or consent. As used in this Agreement, the term “
Order
” means any final and non-appealable
order, judgment, or decree of any court of competent jurisdiction.
(f) Escrow
Agent shall have no less than three (3) Business Days to act upon any instruction received by the Cut-Off Time pursuant to this
paragraph 5.
6.
Conflicting
Demands
. If conflicting or adverse claims or demands are made or notices served upon the Escrow Agent, then the Escrow Agent
shall refrain from complying with any such claim or demand so long as such disagreement shall continue. In so doing, the Escrow
Agent shall not be or become liable for damages, losses, costs, expenses, or interest to any Person for its failure to comply with
such conflicting or adverse demands. The Escrow Agent shall continue to so refrain and refuse to act until it shall have received
certification satisfactory to it that such conflicting or adverse claims or demands shall have been finally determined by an Order,
or shall have been settled by agreement of Parent and the Company, in which case the Escrow Agent shall be notified thereof in
a written notice signed by Parent and the Company. The Escrow Agent may seek the advice of legal counsel in any dispute or question
as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability and
shall be fully protected in respect of any action taken, omitted, or suffered by it in good faith in accordance with the opinion
of such counsel. The Escrow Agent may also elect to commence an interpleader or other action for declaratory judgment for the purpose
of having the respective rights of the claimants adjudicated, and may deposit with the court all Escrow Shares (and the Stock Certificate
and Share Transfer Documents), and if it so commences and deposits all Escrow Shares (and the Stock Certificate and Share Transfer
Documents), the Escrow Agent shall be relieved and discharged from any further duties and obligations under this Agreement.
7.
Termination
.
This Escrow Agreement, except for paragraphs 8(c), 8(d), and 8(i), which shall continue in effect, shall terminate on the date
on which there are no remaining Escrow Shares held in the Escrow Account.
8.
Duties
of Escrow Agent; Exculpation and Indemnification of Escrow Agent
.
(a) The
Escrow Agent undertakes to perform only such duties as are expressly set forth herein.
(b) The
Escrow Agent shall be under no duty to accept information from any person other than the Company and Parent and then only to the
extent and in the manner provided in this Agreement.
(c) Except
in cases of the Escrow Agent’s bad faith, gross negligence, willful misconduct, fraud, or willful breach of this Agreement,
the Escrow Agent shall be protected in acting upon any written notice, opinion, request, certificate, approval, consent, or other
document believed by it to be genuine and to be signed by the proper party or parties.
(d) Parent
and the Company hereby jointly and severally agree to indemnify and hold harmless the Escrow Agent from and against any claims,
losses, damages, liabilities, and expenses (including reasonable legal fees and expenses of attorneys) as and when incurred, arising
out of or based upon any act, omission, alleged act, or alleged omission by the Escrow Agent, or any other cause, in any case in
connection with the performance or non-performance by the Escrow Agent of any of the Escrow Agent’s duties under this Agreement,
except such claims losses, liabilities, and expenses arising out of or based upon the Escrow Agent’s bad faith, gross negligence,
willful misconduct, fraud, or willful breach of this Agreement;
provided
,
however,
that promptly after the receipt
by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit, or proceeding, the Escrow Agent shall,
if a claim in respect thereof is to be made by the Escrow Agent against Parent and the Company hereunder, notify Parent and the
Company in writing; and
provided
,
further,
that Parent and the Company shall be entitled, jointly or severally and
at their own expense, to participate in and/or assume the defense of any such action, suit, or proceeding. As between Parent and
the Company, all costs of indemnification of the Escrow Agent shall be borne 50% by Parent and 50% by the Company and if either
Parent or the Company incurs greater than 50% of any such costs of indemnification, Parent or the Company, as applicable, will
promptly make payment to the other such that each of Parent and the Company has borne 50% of all amounts which are paid to Escrow
Agent under this subparagraph (d).
(e) The
Escrow Agent shall have no liability or duty to inquire into the terms and conditions of any agreements to which the Escrow Agent
is not a party, its duties under this Agreement being understood to be purely ministerial in nature.
(f) The
Escrow Agent shall be permitted to consult with counsel of its choice and shall not be liable for any action taken, suffered, or
omitted by it in good faith in accordance with the written advice of such counsel;
provided
,
however,
that nothing
contained in this subparagraph (f), nor any action taken by the Escrow Agent, or of any counsel, shall relieve the Escrow Agent
from liability for any claims which are occasioned by its bad faith, gross negligence, willful misconduct, fraud, or willful breach
of this Agreement. The Company shall deposit a reserve of ten thousand dollars ($10,000) with the Escrow Agent for payment of any
legal expenses pursuant to this paragraph. Any un-used funds shall be returned to the Company upon termination of this Agreement.
(g) The
Escrow Agent shall not be bound by any modification, amendment, termination, cancellation, rescission, or supersession of this
Agreement, unless the same shall be in writing and signed by the parties hereto.
(h) The
Escrow Agent shall perform any acts ordered by a court of competent jurisdiction. The Escrow Agent shall if and to the extent it
is uncertain as to its duties and rights hereunder, be entitled to refrain from taking any action other than to keep all Escrow
Shares (and the Stock Certificate and Share Transfer Documents) in escrow until it shall be directed otherwise in writing by both
the Company and Parent, in accordance with this Agreement, or by an Order.
(i) The
Escrow Agent shall have no liability for any act or omission done pursuant to the instructions contained or expressly provided
for herein, or written instructions given by both the Company and Parent pursuant hereto, except in cases of the Escrow Agent’s
bad faith, gross negligence, willful misconduct, fraud, or willful breach of this Agreement.
(j) The
Escrow Agent shall have the right, at any time, to resign hereunder by giving written notice of its resignation to the Company
and Parent, at least thirty (30) Business Days prior to the date specified for such resignation to take effect;
provided
,
however
, that no such resignation shall be effective unless and until Parent and the Company have selected a successor escrow
agent and such successor escrow agent shall have assumed all of the obligations of the Escrow Agent hereunder. Upon receipt of
written notice from Parent and the Company that a successor escrow agent has been selected and assumed the obligations of the Escrow
Agent hereunder, the Escrow Agent shall promptly deliver the Escrow Shares (and the Stock Certificate and Share Transfer Documents)
to such successor escrow agent. If Parent and the Company have failed to appoint a successor prior to the expiration of thirty
(30) Business Days following receipt of the Escrow Agent’s notice of resignation, the Escrow Agent may petition any court
of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, and any such resulting
appointment shall be binding upon all of the parties.
(k) The
Company and Parent agree to reimburse the Escrow Agent upon its request for all reasonable expenses, disbursements, and advances
incurred or made by it in accordance with any provisions of this Agreement, except any such expenses, disbursements, or advances
as may be attributable to its gross negligence, willful misconduct, bad faith, fraud, or other breach of fiduciary duty. All reimbursements
pursuant to this subparagraph (k) shall be made one half by the Company and one half by Parent. The Escrow Agent shall deliver
to Parent and the Company upon request a detailed accounting as to all fees and reimbursable expenses claimed by the Escrow Agent.
(l) The
Escrow Agent shall be entitled a one-time fee of $2,500 (“Set-Up Fee”) for the Escrow Agent’s initial review
of this Agreement and the Escrow Account set-up, and an annual fee of $9,500 (‘Annual Fee”) for its services as Escrow
Agent hereunder (it being understood and agreed that such fees are the only fees to which Escrow Agent is entitled) in connection
with the performance of its duties hereunder, and services required on account of disputes between Parent and the Company. Such
fees shall be paid one-half by the Company and one-half by Parent. The Set-Up Fee and the Annual Fee shall be due and payable upon
execution of this Agreement. The Set-Up Fee and Annual Fee are non-refundable and shall not be pro-rated or reduced due to any
termination event.
9.
Representations
and Warranties
. Each party hereby represents and warrants to each other party hereto that:
(a) this
Agreement has been duly authorized, executed, and delivered by such party and is the legal, valid, and binding agreement of such
party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or affecting the rights and remedies of creditors generally and to general principles of
equity (regardless of whether in equity or at law); and
(b) the
execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not violate
any provision of, or be an event that is or, with the passage of time will result in, a violation of, or result in the acceleration
of or entitle any party to accelerate (whether after the giving of notice or lapse of time or both) any obligation under or pursuant
to any mortgage, lien, lease, agreement, instrument, order, arbitration award, judgment, or decree to which such party is a party
or by which it or any of its assets are bound.
10.
Notices
.
All requests, notices, or other communications hereunder shall be in writing and shall be given (and shall be deemed to have been
duly given upon receipt) by hand in a sealed envelope, by prepaid overnight courier (providing proof of delivery), by email, or
by registered or certified mail, return receipt requested, postage prepaid to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in accordance with this paragraph 10):
if to the Company:
Nevada Gold & Casinos, Inc.
133 E. Warm Springs Road, Suite 102
Las Vegas, Nevada 89119
Attention: Michael P. Shaunnessy, President & CEO
Email: mshaunnessy@nevadagold.com
with a copy to:
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, NY 10004
Attention: James Modlin
Email: james.modlin@hugheshubbard.com
if to Parent:
Maverick Casinos LLC
2926 Montessouri Street
Las Vegas, NV 89117
Attention: Erick Persson
Email: erichpersson@gmail.com
with a copy to:
Lewis Roca Rothgerber Christie LLP
3993 Howard Hughes Parkway, Suite 600
Las Vegas, NV 89169
Attention: Don Martin, Esq.
Email: dmartin@lrrc.com
if to the Escrow Agent:
Mutual of Omaha Bank
Wealth Management
9200 E Pima Center Parkway, Suite 260
Scottsdale, AZ 85258
Attention: Bruce Fox
Email: Bruce.Fox@mutualofomahabank.com
with a copy to:
Mutual of Omaha Bank
Bank Law Group
4950 S. 48
th
Street
Phoenix, AZ 85040
Attn: Janet A. Ryan, Esq.
Email: janet.ryan@mutualofomahabank.com
11.
Governing
Law; Jurisdiction
.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflicts
of law rules of such state that would direct a matter to another jurisdiction.
(b) Each
of the parties (i) agrees that any action, suit, or proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with this Agreement or the transactions contemplated hereby (whether brought by any party or any of its
affiliates or against any party or any of its affiliates) shall be brought, heard, and determined exclusively in the state courts
located in the State of Nevada or, if such court shall not have jurisdiction, any of the federal courts of the United States of
America located in the State of Nevada, (ii) irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such action, suit, or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such action, suit, or proceeding in any such court or that
any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum, (iii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, and (iv) agrees
not to bring any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby
in any other court. The parties agree that a final trial court judgment in any such action, suit, or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law;
provided
,
however
,
that nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal
from, such final trial court judgment.
12.
Waiver
of Jury Trial
. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13.
Entire
Agreement
. This Agreement, and solely with respect to Parent and the Company, the Merger Agreement and the Securities Purchase
Agreement, contain the entire agreement by and among the parties with respect to the subject matter hereof and all prior agreements
and undertakings, written or oral, relating to the subject matter of this Agreement are superseded by this Agreement and solely
with respect to Parent and the Company, the Merger Agreement and the Securities Purchase Agreement.
14.
Assignment
.
Neither this Agreement nor any of the rights, interests, or obligations under this Agreement may be assigned by any of the parties
without the prior written consent of the other parties. Any purported assignment in violation of this paragraph 14 will be null
and void
ab initio
. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and
be enforceable by, the parties and their respective successors and assigns.
15.
Amendments;
Waiver
. This Agreement may not be amended or modified except by written agreement of the parties. Any party hereto may, only
by an instrument in writing, waive compliance by any other party or parties hereto with any term or provision hereof on the part
of such other party or parties hereto to be performed or complied with. No failure or delay of any party in exercising any right
or remedy hereunder shall operate as a waiver thereof, nor will any single or partial exercise of any right or power, or any abandonment
or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The waiver by any party hereto of a breach of any term or provision hereof shall not be construed as a waiver
of any subsequent breach. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have hereunder.
16.
Miscellaneous
.
Nothing in this Agreement is intended to or shall confer upon anyone other than the parties hereto any legal or equitable right,
remedy, or claim. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement,
including all legal, accounting, financial advisory, consulting, and all other fees and expenses of third parties incurred by a
party in connection with this Agreement and the transactions contemplated hereby, shall be the obligation of the respective party
incurring such fees and expenses. This Agreement may be executed and delivered (including by facsimile or other form of electronic
transmission) in two or more counterparts, and by the different parties in separate counterparts, each of which when executed shall
be deemed to be an original but all of which taken together shall constitute one and the same agreement. Paragraph headings contained
in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of any term or provision
hereof. If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held
invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof.
[Signature page follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date first above written.
|
NEVADA GOLD & CASINOS, INC.
|
|
|
|
|
By:
|
/s/ Michael P. Shaunnessy
|
|
|
Name: Michael P. Shaunnessy
|
|
|
Title: President & CEO
|
|
|
|
|
MAVERICK CASINOS LLC
|
|
|
|
|
By:
|
/s/ Eric Persson
|
|
|
Name: Eric Persson
|
|
|
Title: Manager
|
|
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|
|
MUTUAL OF OMAHA BANK
|
|
|
|
|
By:
|
/s/ Bruce Fox
|
|
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Name: Bruce Fox
|
|
|
Title: Vice President
|
[Signature page to Escrow Agreement]