MANDATE AGREEMENT
entered
into by and between
| 1) |
CA
IB Corporate Finance Beratungs Ges.m.b.H. ("CA
IB")
|
acting
for Bank Austria Creditanstalt AG ("BA-CA") by virtue of a general
mandate,
and
| 2) |
Century
Casinos Inc., (the “Company”)
|
Colorado
Springs, Colorado
PREAMBLE
This
Agreement shall govern, in principle, the legal relationship between the
parties
in connection with the proposed listing on the
Vienna Stock Exchange (“VSE”) and placement of Austrian Depositary Certificates
(“ADCs”) representing shares
of the
Company by way of a public offering in Austria and international private
placements.
The
placement volume shall be approx. EUR 40 million, in addition, the possibility
of providing for an over-allotment option of 10% to 15% of the placement
volume
will be investigated (the
“Transaction").
However,
the placement volume and the over-allotment option, together, shall not exceed
the equivalent of USD 50 million.
The
parties
envisage the placement to be executed in autumn 2005 based on the consolidated
financial statements of the Company
as of
June 30, 2005.
The
final terms of the Transaction will be agreed among the parties in an
underwriting agreement
(the
"Underwriting Agreement"),
having
regard to prevailing market conditions.
Given
appropriate market conditions and provided the due diligence review produces
satisfying results,
an
SAS 72
comfort letter is issued by the Company’s auditors and a 10 b5 legal opinion is
issued by Company’s counsel in a form and substance satisfactory for CA IB, and
the prospectus to be drafted
in
accordance with the EU Regulation nr. 809/2004 (the “Prospectus”) has been
approved by the Austrian Financial Authority (“FMA”), it is proposed to carry
out the Transaction as soon as practicable thereafter.
The
Company mandates CA IB and its affiliates (collectively "CA IB") as Sole
Bookrunner and Lead-Manager of the Transaction. It is agreed that no other
bank
will be involved in the Transaction.
The
features and terms of the placement of shares and the underwriting commitment
by
CA IB will be governed by the
Underwriting
Agreement.
The
provisions set forth in this Mandate Agreement shall
| a) |
not
constitute a binding obligation of CA IB or another member of the
Bank
Austria/HVB group to carry out the Transaction, execute the Underwriting
Agreement in connection with the Transaction or underwrite or subscribe
to
the securities,
|
| b) |
not
constitute a responsibility of CA IB or any other member
of the Bank
Austria/HVB Group for any act or omission of any of the Company's
other
advisors, and
|
| c) |
shall
not limit the future terms of the Underwriting
Agreement; it is, however, understood that the Underwriting Agreement
will
not provide for commissions exceeding the amounts specified in
section V
of this Mandate Agreement or contain any provisions, in particular
representations and warranties, which would be unusual for equity
offerings
in
Austria or internationally.
|
-1-
| I. |
RESPONSIBILITIES/DUTIES
OF CA IB
|
In
connection with preparing
and consummating the Transaction, CA IB will in particular:
| a) |
review
and assess, in cooperation with the Company’s US-counsel Faegre &
▇▇▇▇▇▇ LLP, Dorda, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ as the transaction counsel as
well as
Shearman & Sterling
as
the CA IB’s
counsel, the Company's legal relations, operations, assets and
liabilities, financial condition and results of operation as well
as its
business prospects on the basis of information provided by the
Company
itself or on its behalf;
|
| b) |
coordinate
between the Company and the relevant advisors (attorneys, auditors,
public
relations consultants) which may be necessary for the purpose of
the due
diligence and the execution of the
Transaction;
|
| c) |
participate
in the preparation of an offering circular in accordance with Regulation
nr. 809/2004 (Prospectus Directive) (the “Prospectus”) for which the
Company is responsible, which has to be approved by FMA prior to
application for listing on VSE;
|
| d) |
support
the Company and its advisors, in drawing up all necessary documents,
agreements and contracts in connection with the
Transaction;
|
| e) |
advise
the Company on other areas, if any, to be agreed upon, which are
necessary
in connection with the Transaction;
|
| f) |
coordinate
with FMA the process of approving the Prospectus,
with VSE the admission process and with
Oesterreichische Kontrollbank (“OeKB”) the structure for establishing and
implementing the ADCs with the necessary deposits in the United
States and
act
as the listing agent for the Company;
|
| g) |
advise
the Company on reasonable marketing measures
and draft
the roadshow presentation in cooperation with
the Company;
|
| h) |
advise
the Company on and procure on their behalf the necessary notices
and
publications prescribed by law;
|
| i) |
prepare
and carry out as the Sole Bookrunner and Lead Manager the placement
of the
ADCs
in
Austria and internationally;
|
| j) |
coordinate
with the Company on a current basis all activities in connection
with the
preparation and consummation of the Transaction and inform the
Company on
any development which may materially affect the Transaction;
|
| k) |
during
the bookbuilding procedure and within the scope of statutory and
regulatory provisions keep the Company
posted of developments in demand, the composition of investors,
and price
sensitivities;
|
| l) |
fix
an optimal offer price in cooperation with the Company after the
bookbuilding procedure and carry out the allotment,
it
being well understood that the Transaction will be marketed
as an “at market bookbuilt
offering”;
|
| m) |
issue
a written undertaking to VSE that it will act as market maker
(“Specialist”) for the Company’s ADCs.
|
-2-
The
Company agrees that CA IB’s consulting activities shall be limited only to the
Transaction hereunder and may not be used for any other purpose or be applied
as
assessment basis in any other context. CA IB will not provide any consulting
services which are usually provided to the Company (e.g. for legal matters,
accounting and tax issues) by other advisors or regarding US-related matters
in
connection with the Transaction,
and
does not accept responsibility for such consulting services. In addition,
the
Company undertakes not to agree on any liability waiver relating to audit,
tax,
legal, regulatory, insurance and other issues in connection with the Transaction
in the mandate agreements with their advisors, except with the written consent
of CA IB.
II.
RESPONSIBILITIES/DUTIES OF THE COMPANY
In
the
course of preparing the Transaction the Company will make available any
information, document and proof which may be necessary to prepare the
documentation (e.g. the
Prospectus),
the due diligence review, the issuance of the SAS 72 comfort letter and the
10b5
legal opinion.
In
addition, CA IB may directly approach the management of the Company and of
its
affiliates as well as employees
(after
adequate advance notice to the CEOs of the Company of CA IB’s intent to do
so)
and
advisors (in particular attorneys, auditors) to obtain the information it
considers necessary.
CA
IB may
rely on the accuracy, correctness and completeness of such information provided
by the Company or originating from public sources, unless such documents
are
evidently false or incomplete. CA IB is not obliged to review the accuracy,
correctness or completeness of such information and is not liable towards
the
Company for the use of such information.
The
Company undertakes to comply
with all US -, Austrian - and other applicable securities laws in connection
with the Transaction and
to
establish appropriate clearing facilities in order to effect the settlement
of
the Transaction as well as trading on VSE.
In
addition, the Company undertakes to fulfill any obligations which may be
necessary for the admission to listing and trading in the prime market segment
on the Vienna Stock Exchange as well as ongoing reporting obligations according
to Austrian law as well as US law.
III.
PUBLICATIONS
The
Company declares not to publish, whether itself or through third parties,
any
information or notice in connection with the proposed Transaction or any
material information about the Company's course of business, unless CA IB
approves the disclosure of information in a particular case or unless it
is
information which the Company is required to disclose by law or which shall
be
disclosed on request of a public authority.
The
Company ensures that any open question, doubt, uncertainty or ambiguity relating
to impending publications be timely discussed with CA IB and the relevant
advisors before the relevant decisions are made or the relevant events have
occurred.
The
Company undertakes to ensure that the contents of its website
are
reviewed
to ensure that no information (including hyperlinks on other
websites)
is
published there which directly or indirectly relates
to the
Transaction or the Company's disclosure obligations
towards
CA IB,
except
for such information which has to be disclosed to the public due to legal
and/or
regulatory requirements the Company must comply with.
-3-
CA
IB
reserves the right to publish notices about its function as advisor/Bookrunner
and Lead Manager in newspapers or in the form of advertisements or in any
other
form as soon as the Transaction has
been
consummated.
IV.
CONFIDENTIALITY
CA
IB
will keep strictly confidential any information and knowledge relating to
the
Company obtained in preparation of the Transaction, unless the Company approves
the disclosure of confidential information, or in case of information which
CA
IB is required to disclose by law or which shall be disclosed on request
of a
public authority. However, CA IB may disclose data, information or parts
thereof
to auditors or external advisors or to affiliates and subsidiaries in
performance or within the scope of this Mandate Agreement. The
confidentiality obligation towards the Company will expire 1 year after delivery
of the information to CA IB.
Neither
CA IB nor its affiliates shall be obliged to disclose to the Company any
information they (or other affiliates) may have obtained in connection with
other operations or in connection with the provision of services to other
persons. The Company accepts that CA IB and its affiliates will not disclose
any
such information to the Company even if this information pertains to the
Company
or the Transaction.
CA
IB
shall retain sole title to any correspondence and all other documents made
available to it in connection with all matters assumed for the Company except
for original contracts, share certificates and any other title and deed retained
by it on the Company's instructions, or documents which CA IB has agreed
to
return prior to or upon receipt thereof.
The
Company agrees that any information and written documents provided and/or
prepared by CA IB in connection with the Transaction is provided solely for
use
of the Company and may not be passed on to third parties without CA IB’s prior
consent. This applies also in case of a premature termination of the Mandate
Agreement.
V.
COMMISSION
In
consideration for the engagement of CA IB in connection with the preparation
and
execution of the Transaction the Company will pay to CA IB, according to
the
terms of an Underwriting Agreement to be executed separately, a commission
equal
to 4.70% of the sales proceeds (including the sales proceeds generated from
the
over-allotment option, if any).
The
amounts payable hereunder will be paid without any deduction of VAT or any
other
taxes and duties upon
closing of the Transaction.
VI.
EXPENSES
The
Company will bear all costs and expenses, taxes and duties arising in connection
with the Transaction, including any costs arising for preparing, translating
(if
applicable), printing and shipping the Prospectus and the marketing materials,
and for all necessary publications.
In
particular, the Company will:
| a) |
make
available a sufficient number of copies
of the
Prospectus;
|
-4-
| b) |
pay
for all fees and expenses arising in connection with the Transaction
for
the legal due diligence and consultancy of CA IB (Underwriter's
Counsel,
whose
legal fees shall not exceed the sum of EUR 50,000,--,
10 b5
legal opinion, SAS 72 comfort letter), the Company’s consulting fees
(including auditors’ fees and the preparation of a comfort letter) and the
legal fees of the Company, (Company’s Counsel, Transaction
Lawyer);
|
| c) |
bear
any costs for presentations in Austria and internationally (roadshow)
as
well as any costs arising for other advertising
measures;
|
| d) |
pay
all
reasonable out-of-pocket
expenses incurred by the employees of CA IB in connection with
the
Transaction (e.g. travel expenses, hotels, shipping charges);
|
| e) |
bear
any costs and charges arising in connection with the approval of
the
Prospectus and the listing of the ADCs
on
VSE.
|
The
amounts payable hereunder will be paid without any deduction of VAT or any
other
taxes and duties. However, these amounts will be charged, if applicable,
with
VAT and other taxes. The Company will pay those additional amounts which
are
necessary so that the net amounts actually received by CA IB, after deduction
of
the relevant amounts, are consistent with what CA IB would have otherwise
received.
VII.
INDEMNIFICATION
The
Company
undertakes to hold harmless and indemnify CA IB and its respective ultimate
parent company (in case of CA IB this is Bayerische Hypo- und Vereinsbank
AG),
their subsidiaries and affiliates and their respective directors, officers,
employees and representatives of the same and/or all institutions and their
representatives and subsidiaries that may be involved in the Transaction
hereunder, for any liability and any other disadvantage (in particular losses,
claims, damage
(however, not consequential damages),
liabilities, costs or expenses, which may be related to the preparation and
consummation of the Transaction hereunder), which they may incur in connection
with this Mandate
Agreement and the activities conducted in this context. The Company will
also
reimburse all reasonable
and documented costs,
expenses and disbursements incurred by eligible parties from the investigation,
avoidance or dispute of such complaint or claim.
Should
a
third party assert any judicial and non-judicial claims against CA IB or
another
party to be indemnified in connection with this mandate, the Company will
use
its best endeavors to defend the rights of CA IB and of any other person
to be
indemnified.
The
right
to indemnification does not exist if and when a final decision holds that
CA IB
has caused the damage with intent or gross negligence.
VIII.
CA IB’S INTERESTS
The
Company is aware that CA IB and other members of Bank Austria/HVB Group are
engaged, inter
alia,
in the
following activities:
capital
markets, securities issuing, securities trade and analysis, brokering activities
and financing business, general banking business and asset management (this
includes the management of open-end funds and other collective asset management
systems) that are all operated independently from corporate finance/equity
capital markets.
-5-
In
connection with their ordinary activities, other members of the Bank Austria/HVB
Group may have a financial interest in the Transaction. In addition, members
of
the Bank Austria/HVB Group could hold participations in the shares of other
companies that could be interested in the Transaction.
Members
of Bank Austria/HVB Group may, in the course of its ordinary activities,
hold
long
or
short positions
in debt instruments, shares or preferred loans of the Company or other companies
related to the Transaction and do business for its own or another person's
account.
CA
IB may
also provide investment, banking, financing and other financial consulting
services to companies who are competitors of the Company. In this event,
however, CA IB will not use or disclose to its other customers any confidential
information relating to the Company it may have obtained hereunder or by
virtue
of this mandate. In this context, the Company acknowledges that it has no
right
to receive information from CA IB which the latter has received from other
parties.
IX.
TERM
AND TERMINATION
OF THE AGREEMENT
a)
The
Transaction shall be consummated by November 31, 2005 at the latest. Should
the
Transaction not be consummated by December 31, 2005, the Mandate Agreement
will
elapse without any further written notice of the Company or CA IB
required.
b) Either
party
may terminate this Mandate Agreement with immediate effect at any time before
the signing of the Underwriting Agreement by giving written notice.
c) Should
a
reasonable consummation of the Transaction become impossible for
(i)
material reasons within the Company’s control, (ii)
due
to
unforeseeable events or findings of economic or political nature, (iii) due
to a
material change in the decision basis or (iv) in the conditions of national
and/or international capital markets, both the Company and CA IB may
unilaterally terminate this Mandate Agreement by giving written notice after
consultation with the respective other party.
| d) |
Should
the mandate hereunder elapse or be terminated by the Company for
any
reason before
the Transaction is consummated and not become extended for a period
of at
least 6 months, CA IB shall receive a compensation of EUR 50,000.--
for each month of its engagement hereunder, beginning with August
2005. The same applies, if CA IB terminates the mandate
hereunder
for reasons mentioned in c)
(i) and/or (iii). The compensation hereunder shall, however, not
exceed
the sum of EUR 150,000.--
in
case the mandate does not become
extended.
|
| e) |
In
case the
mandate hereunder is terminated by the Company before the Transaction
is
consummated
and
a
similar transaction (as
defined below) is
carried out within a period of 12 months following the cancellation
or
termination,
CA
IB will receive a break-up fee of 1.25 % of the sales proceeds
resulting from the Similar Transaction; such break-up fee shall,
however,
not exceed EUR 500,000.--.
|
"Similar
Transaction" shall have the meaning of an equity transaction (shares or ADCs)
of
the Company conducted on the Vienna Stock Exchange.
Any
termination, cancellation or expiration of this
Mandate
Agreement shall not affect rights to insist on compliance with the
confidentiality obligation referred to in Article IV which have already accrued
at least on the merits, to reimbursement of expenses and costs as referred
to in
Article VI and to indemnification as referred to in Article VII.
-6-
X.
PLACE OF JURISDICTION
This
Mandate
Agreement
as well as all rights and obligations arising therefrom shall be governed
by and
construed in accordance with the laws of the Republic of Austria. Place of
jurisdiction shall be Vienna.
XI.
MISCELLANEOUS
Should
individual terms hereof be or become invalid or unenforceable in whole or
in
part, this shall not affect the remaining terms hereof. Invalid or unenforceable
terms shall be replaced by valid terms in accordance with the meaning and
purpose of this Agreement that closest reflect the economic purpose of the
invalid terms.
This
Mandate
Agreement will enter into force upon signing by both parties and will be
executed in two originals. Each party will receive one original.
Vienna,
September
30,
2005
CA
IB
Corporate Finance Beratungs GesmbH,
Vienna
| /s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ | /s/ Mag. ▇▇▇▇▇▇▇ Brigelhuber | ||
|
Name: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ |
Name:Mag. ▇▇▇▇▇▇▇ Brigelhuber |
||
Century
Casinos,
Inc.,
Wilmington
| /s/ ▇▇. ▇▇▇▇▇ Haitzmann | /s/ Mag. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
Name:▇▇. ▇▇▇▇▇ Haitzmann |
Name:Mag. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
||