SALE OF SHARES AGREEMENT
between
CENTURY CASINOS INCORPORATED
CALEDON OVERBERG INVESTMENTS (PROPRIETARY) LIMITED
and
CALEDON CASINO BID COMPANY (PROPRIETARY) LIMITED
TABLE OF CONTENTS
1 INTERPRETATION 1
2 INTRODUCTION 6
3 SUSPENSIVE CONDITIONS 6
4 SALE 8
5 PURCHASE PRICE AND PAYMENT 9
6 RESTRICTIONS ON RESTRICTED CENTURY STOCK 11
7 DELIVERY AND CLOSING 13
8 RISK AND BENEFIT 13
9 WARRANTIES 13
10 ANNOUNCEMENT AND CO-OPERATION 14
11 BREACH 15
12 ARBITRATION 15
13 GOVERNING LAW AND JURISDICTION 16
14 DOMICILIUM AND NOTICES 16
15 GENERAL 17
16 COSTS 18
ANNEXURES
ANNEXURE A- RESOLUTION OF THE DIRECTORS OF PURCHASER
ANNEXURE B RESOLUTION OF THE DIRECTORS OF SELLER
ANNEXURE C- RESOLUTION OF THE MEMBERS OF SELLER
SALE OF SHARES AGREEMENT
between
CENTURY CASINOS INCORPORATED
CALEDON OVERBERG INVESTMENTS (PROPRIETARY) LIMITED
and
CALEDON CASINO BID COMPANY (PROPRIETARY) LIMITED
1 INTERPRETATION
In this agreement, clause headings are for convenience and shall not be
used in its interpretation and, unless the context clearly
indicates a contrary intention, -
1.1 an expression which denotes -
1.1.1 any gender includes the other genders;
1.1.2 a natural person includes an artificial or juristic person and vice
versa;
1.1.3 the singular includes the plural and vice versa;
1.2 the following expressions shall bear the meanings assigned to them below
and cognate expressions bear corresponding meanings -
1.2.1 "the Act" - the Companies Act, 61 of 1973, as amended;
1.2.2 "the/this agreement" - the agreement as set out herein together with
all its annexures, as amended from time to time;
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1.2.3 "business day" - any day other than a Saturday, Sunday or official
public holiday in the Republic of South Africa;
1.2.4 "claims" - R4 500 000 of the seller's claims on loan account against
the company as at the effective date;
1.2.5 "the closing date" - the fifth business day after the last condition
has been fulfilled or waived;
1.2.6 "company" - Caledon Casino Bid Company (Proprietary) Limited,
registration number 1996/10708/07, a private company with limited
liability duly incorporated in accordance with the laws of
the Republic of South Africa;
1.2.7 'conditions" - the suspensive conditions set out in 3.1;
1.2.8 "documents of title" - collectively -
1.2.8.1 share certificates in respect of the shares together
with share transfer forms in respect thereof duly
completed and signed by the register holder(s) of the
shares in accordance with the provisions of the Act
and the memorandum and articles of association of the
company, blank as to transferee and dated not more
than three days prior to the effective date;
1.2.8.2 a written and signed cession of the claims in favour of
the purchaser or its nominee;
1.2.8.3 a certified copy of a resolution of the directors of the
company, passed in accordance with the Act and the
memorandum and articles of association of the
company approving the transfer of the shares into the
name of the purchaser or its nominee and
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acknowledging the cession of the claims to
the purchaser or its nominee; and
1.2.8.4 a certified copy of a resolution of the members of the company,
passed in accordance with the Act and the memorandum and articles
of association of the company appointing six nominees of the
purchaser as directors of the company;
1.2.9 "effective date" - notwithstanding the date on which this agreement
is signed by the party signing last in time, the effective date
shall be November 1,2000
1.2.10 "Empowerco" - Overberg Empowerment Company Limited,
registration number [97/00328/06], a public company with
limited liability duly incorporated in the Republic of South
Africa;
1.2.11 "parties" - the purchaser, the seller and the company;
1.2.12 "pledge" - the written pledge of shares and claims by the seller to
PSGIB in terms of which the seller pledged and ceded in security
the shares to PSGIB dated [ 13 April 2000];
1.2.13 "preferred shareholders" - Empowerco and the Trust;
1.2.14 "PSGIB" - PSG Investment Bank Limited, registration number
1998/817396/06, a public company with limited liability
duly incorporated in the Republic of South Africa;
1.2.15 "purchaser" - Century Casinos Incorporated, a company incorporated in
the State of [Delaware ], United States of America herein
represented by Xx Xxxxx Xxxxxxxxxx in his capacity as
[President and Vice Chairman I of the purchaser, he being duly
authorised thereto, by virtue of a
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resolution of the directors of the purchaser, a copy of which is
annexed hereto markiid A;
1.2.16 "purchase price" - the purchase price for the shares and the
claims set out in 5.1;
1.2.17 "seller" - Caledon Overberg Investments (Proprietary) Limited,
registration number [96/06728/07 1, a
private company with limited liability duly incorporated
according to the laws of the Republic of South Africa, herein
represented by Mr [Xxxx Xxxxxx] in his capacity as a director
of the seller, he being duly authorised thereto, by virtue of a
resolution of the directors of the seller' a copy of which
is annexed hereto marked B, and a resolution of the members of
the seller duly adopted in terms of section 228 of the Act,
a copy of which is annexed hereto marked C;
1.2.18 "shareholders' agreement" - a written shareholders'
agreement to be concluded between the preferred shareholders, the
purchaser, the seller and the company contemporaneously with
this agreement regulating the affairs of the company and the
relationship of the preferred shareholders, the seller and the
purchaser as shareholders of the company,
1.2.19 "shares" - ordinary par value shares of Rl each in the share
capital of the company constituting 15 % of the entire issued
ordinary share capital of the company on the effective date,
being 600 ordinary par value shares of Rl each in the share
capital of the company;
1.2.20 "signature date" - them date on which this agreement is signed by
the party signing last in time;
1.2.21 "the Trust" - The Overberg Community Trust, master's reference
number [ ]
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1.2.22 US$ - United States Dollars, the lawful currency of the
United States of America;
1.3 any reference to any statute, regulation or other legislation shall
be a reference to that statute, regulation or other legislation as
at the signature date, and as amended or substituted from time
to time;
1.4 if any provision in a definition is a substantive provision
conferring a right or imposing an obligation on any party then,
notwithstanding that it is only in a definition, effect shall be
given to that provision as if it were a substantive provision in
the body of this agreement;
1.5 where any term is defined within a particular clause other than
this 1, that term shall bear the meaning ascribed to it in that
clause wherever it is used in this agreement;
1.6 where any number of days is to be calculated from a particular day,
such number shall be calculated as excluding such particular day
and commencing on the next day. If the last day of such number so
calculated falls on a day which is not a business day, the last
day shall be deemed to be the next succeeding day which is a
business day;
1.7 any term which refers to a South African legal concept or process
(for example, without limiting the aforegoing, winding-up or
curatorship) shall be deemed to include a reference to the
equivalent or analogous concept or process in any other
jurisdiction in which this agreement may apply or to the laws of
which a party may be or become subject;
1.8 the use of the word "including" followed by a specific example/s
shall not be construed as limiting the meaning of the general wording
preceding it and the eiusdem generis rule shall not be applied
in the interpretation of such general wording or such specific
example/s.
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2 INTRODUCTION
2.1 The seller is the owner of the shares and the holder of the
claims.
2.2 The purchaser wishes to acquire the shares and the claims and the
seller is willing to sell same to the purchaser on the terms and
conditions set out in this agreement.
3 SUSPENSIVE CONDITIONS
3.1 This agreement, save for the provisions of 1, 3 and 12 to 15
(both inclusive) which will be of immediate force and
effect, is subject to the suspensive conditions that, by no later
than 30 January 2001 -
3.1.1 PSGIB consents in writing to the to the sale of shares set out
herein and agrees (either unconditionally or subject to the
condition that the shares and the claims are again pledged to it
in security)to release the shares and the claims from the pledge
in order to allow same to be delivered to the purchaser
in terms hereof;
3.1.2 the seller obtaining all necessary regulatory and other approvals
to the transaction set out herein including the written approval
of the exchange control authorities of the Republic of South
Africa;
3.1.3 the Western Cape Gambling Board consents in writing to
the transactionset out herein in terms of applicable
legislation to which the company is subject;
3.1.4 the preferred shareholders consent in writing to the sale
of the shares as set out herein; and
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3.1.5 the seller, the purchaser, the preferred shareholders and the
company conclude the shareholders' agreement and that the
shareholders agreement becomes unconditional as a result of
the timeous fulfilment of all suspensive conditions to which it
may be subject (save for any such suspensive condition
requiring to this agreement becoming unconditional).
3.2 The conditions have been inserted for the benefit of both the
purchaser and the seller who may, collectively but not
individually, in writing only at any time, waive compliance
therewith or extend the date by which they or any of
them is to be fulfilled.
3.3 Should any of the conditions not be fulfilled or waived, as
the case may be, by the latest date permitted in terms of 3.2,
then this agreement, save for the provisions of 1, 3 and 12
to 15 (both inclusive) which shall continue to bind the parties,
shall never become effective and shall be of no force or
effect and -
3.3.1 to the extent that this agreement may have been partially
implemented, the parties shall be restored to the status quo
ante; and
3.3.2 no party shall have any claim against any other arising out
of or in connection with this agreement except as
contemplated in this clause 3.
3.4 The parties shall use their respective best endeavours to
procure the timeous fulfilment of the conditions.
4 SALE
4.1 The seller sells and cedes to the purchaser, which purchases
and accepts from the seller, the shares and the claims -
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4.1.1 with effect from the effective date; and
4.1.2 as one indivisible transaction, on the terms and conditions set
out in this agreement.
4.2 To the extent required in law, the company consents to the sale
of the claims, being only a portion of the seller's claims on loan
account against the company, to the purchaser.
5 PURCHASE PRICE AND PAYMENT
5.1 The purchase price payable by the purchaser to the seller for the
shares and the claims is an amount of US$l 800 000
("the purchase price")
5.2 The Rand equivalent of the purchase price (determined at the
ruling Rand:US$ exchange rate on the closing date) shall
be apportioned -
5.2.1 as to the claims, the face value thereof as at the effective
date, being R4 500 000; and
5.2.2 as to the shares, the balance.
5.3 Notwithstanding the effective date or anything else contained
herein
interest at 1 6% pa will be paid by the company to
the seller on the face value of the claims from October 11,
2000 to the closing date
5.4 The purchase price shall be paid by the purchaser to the
seller as in full on the closing date at the meeting referred
to in 6.1 against compliance by the seller with its obligations
in terms of 6 .
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5.5 The purchase price shall be paid in full by a certified funds
transfer or similar guaranteed payment into such South African
blink account at an authorised dealer as the seller may
notify the purchaser in writing.
6 DELIVERY AND CLOSING
6.1 At 10:00 on the closing date, representatives of the
purchaser and the seller shall meet at the offices of
[Xxxxxx Xxxx ] situated at [64 Kloof Street ], Cape Town.
6.2 At the meeting referred to in 6.1, the seller shall deliver to
the purchaser the documents of title, which delivery the purchaser
shall accept.
6.3 The seller furthermore agrees to sign all such documents and further
do all such things as may be necessary to give effect to the
provisions of this agreement and to procure the transfer of the
shares and the claims to the
purchaser.
7 RISK AND BENEFIT
7.1 All risk and benefit in and to the shares shall pass to the purchaser
as from the effective date.
7.2 Ownership in respect of the shares shall pass to the purchaser on
the effective date.
7.3 The shares are sold cum dividend.
8 WARRANTIES
The seller hereby warrants to the purchaser, as material warranties
and this agreement is accordingly based thereon, that -
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8.1 it is and will be, as at the effective date, the sole registered
and beneficial owner of the shares and will be reflected in the
register of members of the company as such;
8.2 it is and will be, as at the effective date, the beneficial
holder of the claims, save for the Subordination Agreement
in favour of PSGIB;
8.3 the shares will, when delivered to the purchaser, be free of any
pledge, lien, hypothec, notarial bond or encumbrance whatever
and free of all other rights of retention or pre-emption, save for
an undertaking that the shares will be repledged to PSGIB;
8.4 upon delivery of the documents of title by the seller to the
purchaser, ownership of the shares will pass to the
purchaser;
8.5 it has the legal capacity, competence and authority to enter into
this agreement and to consummate the transaction contemplated in
this agreement and neither the entering into nor the
implementation of this agreement will adversely effect the
rights of any third party.
9 ANNOUNCEMENT AND CO-OPERATION
9.1 The parties undertake to do all such things, perform all such
actions and take all such steps and to procure the doing of
all such things, the performance of all such actions and the taking
of all such steps as may be open to them and necessary for or
incidental to the implementation or the maintenance of the terms,
conditions and/or import of this agreement.
9.2 Neither party shall be entitled to make any announcement within
the Republic of South Africa concerning this agreement or the
transaction referred to herein, unless prior to making such
announcement, it has obtained the prior written consent of the
other party. Notwithstanding the aforesaid, the purchaser
shall be entitled to make any announcement outside of the Republic of
South Africa
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concerning this agreement or the transaction referred to
herein without obtaining the consent of the seller.
10 BREACH
Should either the seller on the one hand or the purchaser on the
other hand ("the party in default") commit a breach of any term,
condition, undertaking, warranty or representation contained in
this agreement and -
10.1 should such breach be incapable of being remedied; or
10.2 should such breach be capable of being remedied and should the party in
default fail to remedy such breach within thirty days after receipt
of written notice to that effect from the other of them, such
other party shall be entitled, without prejudice and in addition to
all of its other rights in terms hereof or at law, to cancel this
agreement forthwith by way of written notice to such effect
to all the other parties.
11 ARBITRATION
11.1 Any disputes arising from or in connection with this agreement shall if
so required by any party by giving written notice to that effect to
the others be finally resolved in accordance with the rules of the
Arbitration Foundation of Southern Africa ("AFSA") in Cape Town
by an arbitrator or arbitrators appointed by AFSA. There shall be
a right of appeal as provided for in article 22 of the aforesaid
rules.
11.2 Each party to this agreement -
11.2.1 expressly consents to any arbitration in terms of the aforesaid rules
being conducted as a matter of urgency; and
11.2.2 irrevocably authorises any of the others to apply, on behalf of all
parties to such dispute, in writing, to the secretariat of
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AFSA in terms of article 23(l) of the aforesaid rules for any
such arbitration to be conducted on an urgent basis.
12 GOVERNING LAW AND JURISDICTION
12.1 This agreement shall in all respects (including its existence,
validity, interpretation, implementation, termination and
enforcement) be governed by the law of the Republic of South
Africa which is applicable to agreements executed and wholly
performed within the Republic of South Africa.
12.2 Subject to 12, the parties hereby consent and submit to the
jurisdiction of the High Court of the Republic of South Africa (Cape
Provincial Division) in respect of any dispute or claim arising
out of or in connection with this agreement.
13 DOMICILIUM AND NOTICES
13.1 The parties choose domicilium citandi et executandi ("domicilium") for
all purposes relating to this agreement, including the giving of any
notice, the payment of any sum, the serving of any process,
as follows -
13.1.1 the seller physical 00 Xxxxx Xxxxxx
Xxxxxxx
0000
facsimile 021-423 4407
13.1.2 the purchaser 0 Xxxxxx Xxxxxx
x/x Xxxxxxx Xxxxxx Xxxxxxx
0000
facsimile 028-214 1270
13.1.3 the company physical 0 Xxxxxx Xxxxxx
Xxxxxxx
0000
facsimile 028- 214 1270
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13.2 Any party shall be entitled from time to time, by giving written notice
to the others, to vary its physical domicilium to any other physical
address (not being a post office box or poste restante) within the
Republic of South Africa and to vary its facsimile domicilium to
any other facsimile number.
13.3 Any notice given or payment made by any party to another ("addressee")
which is delivered. by hand between the hours of 09:00 and 17:00 on any
business day to the addressee=s physical domicilium for the time being
shall be deemed to have been received by the addressee at the
time of delivery.
13.4 Any notice given by any party to another which is successfully
transmitted by facsimile to the addressee=s facsimile domicilium for
the time being shall be deemed (unless the contrary is proved by the
addressee) to have been received by the addressee on the day
immediately succeeding the date of successful transmission thereof.
13.5 This 13 shall not operate so as to invalidate the giving or receipt of
any written notice which is actually received by the addressee other
than by a method referred to in this 13.
13.6 Any notice in terms of or in connection with this agreement shall be
valid and effective only if in writing and if received or deemed to be
received by the addressee.
14 GENERAL
14.1 This agreement read with its appendices constitutes the sole record of
the agreement between the parties in regard to the subject
matter hereof.
14.2 No party shall be bound by any representation, warranty, undertaking,
promise or the like not recorded in this agreement.
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14.3 No addition to, variation or consensual cancellation of this agreement
shall be of any force or effect unless done in writing and signed
by or on behalf of all the parties.
14.4 Any indulgence which any party may show to any other in terms of or
pursuant to the provisions contained in this agreement shall not
constitute a waiver of any of the rights of the party which
granted such indulgence.
15 COSTS
15.1 Each party shall bear and pay its own legal and other costs
in respect of drafting, preparing and implementing this
agreement.
15.2 All stamp duties payable in respect of the. transfer of the
shares to the purchaser terms of this agreement shall be borne
and paid for by purchaser.
15.3 It is recorded that the purchaser will sell the shares to
it's subsidiary Century Casinos Africa (Proprietary)
Limited ("CCA') and all stamp duties payable in respect of
the transfer of the shares from the purchaser to CCA
shall be borne and paid for by the seller.
Signed at Caledon on 4th November 2000
for Century Casinos Incorporated
/s/ Xxxxx Xxxxxxxxxx
who warrants that he is duly
authorised hereto
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15
Signed at Caledon on 4th November 2000
for Caledon Overberg Investments
(Proprietary) Limited
/s/ Xxxx Xxxxxx
who warrants that he is duly
authorised hereto
Signed at Caledon on 4th November 2000
for Caledon Casino Bid Company
(Proprietary) Limited
/s/ Xxxxx Xxxx
who warrants that he is duly
authorised hereto
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