OPTION AGREEMENT
entered into between
GOLD REEF CASINO RESORTS LIMITED
(Registration No. 1989/002108/06)
("GRCR")
and
AKANI LEISURE INVESTMENTS (PROPRIETARY) LIMITED
(Registration No. 1998/002583/07)
("ALI")
(GRCR and ALI collectively referred to as "the AKANI GROUP")
and
SILVERSTAR DEVELOPMENT LIMITED
(Registration No. 1995/000369/06)
("SILVERSTAR")
and
CENTURY RESORTS LIMITED
( a Mauritian company of registration number 50866)
(and together with its subsidiary companies, "GRANTOR")
and
CENTURY CASINOS INCORPORATED
(a company incorporated in the United States of America)
("HOLDCO")
WHEREAS:
o SILVERSTAR DEVELOPMENT LIMITED ("SILVERSTAR") has made an application for a
casino licence in the Xxxxxxx Xxxxxxx xxxxxx ("xxx application") to be
located on portions 39, 104 and 106 of the farm Xxxxxxxxxx 000 XX,
Xxxxxxxxxxx;
o although the High Court of South Africa (Transvaal Provincial Division) has
ordered that the licence is to be awarded to SILVERSTAR by the Gauteng
Gambling Board ("the board"), the board has not yet done so and SILVERSTAR
has been involved in lengthy litigation resulting in SILVERSTAR not being
able to commence with the development of the casino operations on the land;
o the AKANI GROUP has expressed an interest to acquire the entire
shareholding in SILVERSTAR once the casino licence has been awarded to
SILVERSTAR free of any and all obligations for the payment of fees that
SILVERSTAR may have previously undertaken or in respect of any commitments
already made or expenses or obligations already incurred;
o GRANTOR is a party to an agreement or agreements or commitments or binding
obligations under which GRANTOR may have rendered certain services or
delivered certain goods to SILVERSTAR or may have certain current or future
direct or contingent rights against, or obligations to, SILVERSTAR
(collectively "the rights");
o the AKANI GROUP, XXXX XX XXXXX AND XXXXX XXXXXX have entered into an
agreement in terms of which the AKANI GROUP is to acquire the entire equity
interest in SILVERSTAR;
o in terms of that agreement, SILVERSTAR and/or the AKANI GROUP are to enter
into all the option agreements on the basis that the rights are either to
be terminated or that all of the rights are to be ceded to the AKANI GROUP;
o GRANTOR agrees to cede and delegate all of its rights and obligations,
alternatively to terminate and waive all of its rights and obligations on
the terms and conditions set out herein;
o the parties therefore agree subject to the terms and conditions set out
herein.
1. INTERPRETATION
1.1. This agreement shall be exclusively governed and interpreted according
to the laws of the Republic of South Africa in all respects.
1.2. The headings to the clauses of this agreement shall be deemed not to
form part of this agreement and shall not affect its interpretation.
1.3. Except where the context clearly indicates a contrary intention, the
singular includes the plural and vice versa, words importing the
neuter gender include other genders and vice versa, the word "person"
includes a company and any other juristic person and a partnership and
any other body of persons (whether corporate or incorporate), and
includes in each instance their successors in title.
1.4. The parties defined above shall maintain their meanings as so defined
and the following expressions shall bear the meanings ascribed to them
hereunder:
1.4.1. "the acquisition" the acquisition of the totality and
collectively, all interests and the rights to be acquired,
directly or indirectly, by AKANI GROUP in terms of the
transaction of which this agreement is a part;
1.4.2. "the arrangements" means any and all agreements, contracts,
understandings, commitments or arrangements of whatsoever nature
concluded between the GRANTOR or SILVERSTAR, whether enforceable
or not prior to the closing date;
1.4.3. "bid commitments" all deliverables committed to in the
application or as may be subsequently varied by approval of the
board;
1.4.4. "closing date" the date upon the last of the trigger events has
taken place;
1.4.5. "compensation payment" any amount paid or payable by SILVERSTAR
to GRANTOR pursuant to the exercise of the option set out herein;
1.4.6. "default rate" the prime overdraft rate quoted by Nedbank
Limited plus 3% (three per cent) calculated nominal annual
compounded monthly in arrear;
1.4.7. "documents of title" together, all of the following -
1.4.7.1. this agreement;
1.4.7.2. a resolution of the board of directors of GRANTOR
passed in accordance with the articles of association
of GRANTOR empowering GRANTOR to enter into this
agreement;
1.4.7.3. written cession of all the rights of whatsoever
nature which GRANTOR may have against SILVERSTAR in
favour of the AKANI GROUP,
alternatively, a written acknowledge-ment of
termination or waiver of any or all such rights;
1.4.7.4. a resolution of the board of directors of
SILVERSTAR passed in accordance with the articles of
association of SILVERSTAR acknowledging and consenting
to the termination or cession of the rights; and
1.4.7.5. a written cession of the rights against SILVERSTAR
to the AKANI GROUP
1.4.8. "elective termination" any termination pursuant to clause 7;
1.4.9. "equity acquisition" the purchase by AKANI GROUP of all of the
issued share capital in and claims (if any) against SILVERSTAR
from its individual shareholders on the basis that both the
shares and the company shall be free and clear of any claim,
obligation or encumbrance of whatsoever nature unless such claim,
obligation or encumbrance has been approved in writing by the
AKANI GROUP;
1.4.10. "equity option(s)" the option agreement or agreements by which
AKANI GROUP shall purchase all of the issued share capital in,
and all rights (if any) of the
existing shareholders against SILVERSTAR from the existing
shareholders;
1.4.11. "existing shareholders" those persons who are the registered
holders and beneficial owners of the shares in SILVERSTAR that
constitute all of the issued share capital at any time from the
signature date until immediately prior to the closing date;
1.4.12. "GRANTOR" CENTURY RESORTS LIMITED, a Mauritian company of
Registration Number 50866;
1.4.13. "incumbent individuals" Xxxx xx Xxxxx and Xxxxx Xxxxxx;
1.4.14. "the licence" a casino licence for which the application was
made;
1.4.15. "the option agreements" means all of the option agreements to
be entered into by amongst SILVERSTAR and the holders of all the
rights against SILVERSTAR pursuant to agreements, understandings,
commitments and/or arrangements entered into between these
parties and SILVERSTAR;
1.4.16. "the options" the option agreements collectively;
1.4.17. "parties" the persons entering into this agreement;
1.4.18. "the rights" all rights and obligations and claims of
whatsoever nature which the GRANTOR and SILVERSTAR
may have against the other at the closing date pursuant to the
arrangements;
1.4.19. "shareholding" all of the issued share capital in SILVERSTAR;
1.4.20. "signature date" the date that this agreement is signed by the
party signing last in time;
1.4.21. "trigger event(s)" the event or events, as applicable, set out
in clause 4 as being required to have taken place prior to the
closing date;
1.5. If any provision in a definition is a substantive provision conferring
a right or imposing an obligation on any party then, notwithstanding
that it appears by way of definition, effect shall be given to that
provision as if it were a substantive provision in the body of this
agreement.
1.6. Where a number of days is to be calculated from a particular day, such
number shall be calculated as excluding such particular day and
commence on the next day. If the last day of such number so calculated
falls on a day which is not a business day, or any specific calendar
date given that is not a business day, that last day or that specific
date shall be deemed to fall upon the next succeeding day which is a
business day.
1.7. Any reference to days (other than a reference to business days),
months, or years shall be a reference to calendar days, months, or
years, as the case may be.
2. OPTION
2.1. GRANTOR hereby grants an irrevocable and unconditional right and
option to SILVERSTAR, which right and option SILVERSTAR hereby
accepts, to terminate all the rights of GRANTOR pursuant to all
arrangements entered into with SILVERSTAR by which the rights against
SILVERSTAR have been established or, alternatively, cede all the
rights and arrangements such that the AKANI GROUP shall obtain the
benefit of all the rights associated with the arrangements.
2.2. Unless exercised prior to June 30, 2006, this option agreement shall
lapse unless AKANI GROUP or the incumbent individuals are able to
demonstrate that not more than 2 (two) of the trigger events remain
outstanding whereupon notification shall be given in writing by the
AKANI GROUP to the GRANTOR or that this option agreement shall be
extended by a further 12 (twelve) months.
2.3. This option is granted on the following terms and conditions, namely -
2.3.1. the option is exercisable at any date after the closing date
and SILVERSTAR is obligated to exercise the option not later than
30 (thirty) days thereafter by giving GRANTOR written notice to
such effect at its domicilium address as set out below.
Alternatively, the AKANI GROUP may exercise such option on behalf
of SILVERSTAR by given written notice to such effect to the
GRANTOR;
2.3.2. the option is exercisable in whole only and may not otherwise
be exercised in part;
2.3.3. payment of the compensation payment to GRANTOR is subject to
the prior receipt by the AKANI GROUP of the documents of title;
2.3.4. the total compensation payment paid to GRANTOR by SILVERSTAR
shall be R40 290 375,00 (forty million two hundred and ninety
thousand three hundred and seventy five rand) and shall be
payable in 12 (twelve) monthly instalments with the first
instalment falling due 1 (one) month after the closing date and
each
subsequent payment falling due upon the same day of each
succeeding month as follows:
2.3.4.1. the first payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.2. the second payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.3. the third payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.4. the fourth payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.5. the fifth payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.6. the sixth payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.7. the seventh payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.8. the eighth payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.9. the ninth payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.10. the tenth payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand);
2.3.4.11. the eleventh payment instalment shall be R3 357 500.00
(three million three hundred fifty seven thousand five
hundred rand); and
2.3.4.12. the final payment instalment shall be R3 357 875.00
(three million three hundred fifty seven thousand eight
hundred seventy five rand);
2.3.5. the compensation payment shall be exclusive of value added tax
and value added tax shall be paid by SILVERSTAR to the GRANTOR
against receipt of a valid value added tax invoice to such
effect;
2.3.6. upon the date of exercise of the option, the termination or
cession of the rights of GRANTOR in question shall be deemed to
have been concluded and in this regard GRANTOR shall have no
claims of whatsoever nature against SILVERSTAR save in respect of
clause 5.7.
2.4. By not later than 15 (fifteen) business days following the signature
date, the documents of title shall be lodged with
PricewaterhouseCoopers to be held in escrow pending the closing date
with an irrevocable authority in favour of PricewaterhouseCoopers to
release the documents of title from escrow upon exercise of the
options.
2.5. To the extent that cession is taken of the rights, it shall be
acquired voetstoots and without any warranties or representations of
any nature whatsoever save that -
2.5.1. GRANTOR shall be the beneficial owner thereof;
2.5.2. upon exercise of the option SILVERSTAR shall become the sole
and exclusive owner of the rights;
2.5.3. the rights can be transferred without any right of pre-emption,
option, donation or stipulation xxxxxx;
2.5.4. the rights are not subject to any pledge, limitation, notarial
bond or any encumbrance of whatsoever nature;
2.5.5. no person will have any right of any nature whatsoever to
acquire the rights.
2.6. Any amount payable hereunder and not paid on due date shall attract
interest at the default rate until the actual date of payment.
2.7. The GRANTOR hereby undertakes that, with reference to itself and any
of its employees, agents or directors, that, upon the exercise of an
option -
2.7.1. it shall waive, indemnify and hold harmless SILVERSTAR and/or
the AKANI GROUP in respect of any and all past, present and
future claims against same, save in respect of any failure by
SILVERSTAR in terms of clause 5.7 or to make payment when due,
provided that the waiver and indemnity does not apply if the
closing date does not arrive;
2.7.2. that they and any entity in which they or any related party
have a direct, indirect or contingent interest will not do
anything or omit to do anything which may impact negatively and
materially on the events leading up to the closing date and the
activity of SILVERSTAR subsequently for a period of 3 (three)
years after the closing date. For the purposes of clarity, it is
acknowledged by all parties that GRANTOR owns and operates casino
businesses in South Africa which may be
in competition with the businesses of GRCR and/or ALI and/or
SILVERSTAR and that this clause shall not serve to preclude
GRANTOR from continuing with its competitive trading practices in
this regard nor shall it serve to preclude GRANTOR from expanding
its interests within SOUTH AFRICA or elsewhere in competition
with GRCR and/or ALI and/or SILVERSTAR.
2.8. Nothing in this agreement shall impose upon the AKANI GROUP or
SILVERSTAR any obligation to continue to use the GRANTOR for any
services whatsoever.
2.9. HOLDCO hereby warrants and represents that -
2.9.1. only CENTURY RESORTS LIMITED has any rights and/or obligations
against SILVERSTAR;
2.9.2. no other company or associated company within the CENTURY
CASINOS group have any other rights or obligations in favour of
or against SILVERSTAR and hereby indemnifies and holds harmless
SILVERSTAR and the AKANI GROUP against any claim or rights or any
such company or entity which are not waived or terminated in
terms of this agreement.
3. INDIVISIBLE TRANSACTION
This agreement is one of a number of option agreements entered into by
SILVERSTAR and the AKANI GROUP and by which the AKANI GROUP seeks to
achieve the acquisition of the equity interest in SILVERSTAR. Together, the
option agreements represent an indivisible transaction such that SILVERSTAR
and/or the AKANI GROUP will not be obliged to act in respect of any option
agreement in circumstances where any one option agreement is not valid or
cannot be exercised or is not entered into. However, SILVERSTAR and/or the
AKANI GROUP may in their absolute discretion decide to
exercise any one or more of the options arising from the option agreements
without in such case being obliged to exercise any or all of the remaining
option agreements.
4. TRIGGER EVENTS AND CLOSING DATE
The taking place of the last outstanding of the following events shall
bring about and constitute the closing date -
4.1. the entering into of all option agreements, including the option
agreements to acquire the equity shareholding in SILVERSTAR;
4.2. the award of casino licence to SILVERSTAR;
4.3. the issue of casino licence to SILVERSTAR on terms and conditions
acceptable to the AKANI GROUP;
4.4. the approval by the board of the bid commitments attaching to the
casino licence on terms and conditions acceptable to the AKANI GROUP;
4.5. the approval by the board of the contemplated changes in financial and
management interest required to give effect to the acquisition;
4.6. the approval, if required, of the Competition Commission / Tribunal;
4.7. receipt, pending only proclamation, of the necessary town planning /
township / zoning approvals;
4.8. receipt, from the appropriate statutory authority, of a favourable
record of decision to an application for authorisation in terms of the
Environment Conservation Act (more generally known as "approval of
EIA").
5. GENERAL UNDERTAKINGS
5.1. From the signature date, SILVERSTAR and the AKANI GROUP shall be
entitled to all documents and information relating to work that has
been done in relation to the acquisition of the licence by SILVERSTAR,
including environmental impact studies and the like, to the extent
that such information is in the possession of the GRANTOR and is not
otherwise subject to confidentiality undertakings. The GRANTOR shall
render all assistance reasonably necessary so as to make such
information available to the AKANI GROUP. Material provided in terms
of this clause shall be made available to AKANI GROUP on a
confidential basis and which confidentiality shall survive any
termination of this agreement and/or the options.
5.2. The GRANTOR shall use its reasonable endeavours to assist the AKANI
GROUP in the successful implementation of the transaction as set out
herein.
5.3. AKANI GROUP shall only be obligated to fund a compensation payment in
respect of the options once the closing date has arrived.
5.4. Direct costs, such as personal exertion, attendance at meetings,
assistance and time spent are to be borne by each party for their own
account.
5.5. upon exercise of the option, GRANTOR, hereby -
5.5.1. waives, indemnifies, and holds harmless all other parties to
the acquisition and the parties to this agreement in respect of
any and all past, present and future rights against each other,
save in respect of any failure by SILVERSTAR and/or the AKANI
GROUP to make payment when due in respect of the exercise of the
option and in respect of any failure by SILVERSTAR in respect of
clause 5.7 and the AKANI GROUP in respect of clause 5.8; and
5.5.2. undertakes that they and any entity in which they have an
interest will not do anything or omit to do anything which may
impact negatively and materially on the events leading up to the
closing date and the activities of SILVERSTAR subsequently for a
period of 3 (three) years after the closing date, save that, for
the purposes of clarity, it is acknowledged by all parties that
GRANTOR owns and operates casino businesses in South Africa which
may be in competition with the businesses of GRCR and/or ALI
and/or SILVERSTAR and that this clause shall not serve to
preclude GRANTOR from continuing with its competitive trading
practices in this regard nor shall it serve to preclude GRANTOR
from expanding its interests within SOUTH AFRICA or elsewhere in
competition with GRCR and/or ALI and/or SILVERSTAR; and
5.6. GRANTOR hereby waives any rights relating to the reasonable use of
confidential information that may have been made available by them to
SILVERSTAR as part of the bid process to acquire the licence and any
other dealings between those parties and shall permit SILVERSTAR and
the AKANI GROUP to make use of such confidential information in
connection with the continued pursuit by SILVERSTAR of the casino
licence from the signature date.
5.7. SILVERSTAR hereby warrants to GRANTOR that, in the event this option
agreement is not exercised and/or in the event that this option
agreement is exercised but the acquisition is subsequently terminated
or fails to close and GRANTOR has not received payment in full in
respect of an exercise of this option agreement, then SILVERSTAR shall
take all steps as may be necessary to ensure that any and all the
rights of GRANTOR in existence immediately prior to the time of
signature of this option agreement shall remain intact and in force
and effect or be restored to that status quo ante as if this option
agreement had not been entered into.
5.8. AKANI GROUP hereby warrants to GRANTOR that prior to the payment to
GRANTOR of the total compensation payment recorded in clause 2.3.4, it
shall not deliberately do, or cause to be done, anything that would
serve to the prejudice of the GRANTOR in respect of clause 5.7 other
than in pursuance of its objective to acquire the equity interests in
SILVERSTAR and for the trigger events to take place.
5.9. GRCR hereby warrants to GRANTOR that irrespective of any ownership
arrangements entered into in respect of SILVERSTAR after the closing
date, GRCR shall be bound by the terms of this agreement as if it had
been the sole party contracting with the GRANTOR under this option
agreement and shall remain sole guarantor for the performance of the
AKANI GROUP and, after the closing date, SILVERSTAR, until such time
as the compensation payment has been paid in full or the agreement has
been otherwise terminated in terms of clause 7.
6. LITIGATION AND SUSPENSION OF COMPENSATION PAYMENT
6.1. In the event that legal action or official intervention is instituted
that serves to delay the advancement of the development under the
casino licence, and such legal action or official intervention
substantially relates to any approval given in respect of the issue of
the casino licence or other development approval but not substantially
relating to the right of the AKANI GROUP to take a financial or
management interest in SILVERSTAR, then -
6.1.1. the AKANI GROUP shall be entitled to withhold all instalment
payments that may then fall due; and
6.1.2. 40% (forty per cent) of all amounts withheld in terms of this
sub-clause shall be paid into a separate trust account and in
respect of which the AKANI GROUP shall have signing rights
together with a cession in security and all amounts shall be
released for payment in full by the AKANI GROUP within 5 (five)
business
days of the resolution of that legal action or official
intervention or upon any other resumption of the development and
the remaining 60% (sixty per cent) withheld shall be paid in full
by the AKANI GROUP within a further 15 (fifteen) business days
thereafter, subject however to the fact that the AKANI GROUP
shall be entitled to withhold 100% (one hundred per cent) of any
such amounts or instalments to the extent that the legal action
or official intervention has caused a delay in excess of 6 (six)
months but shall make payment in full of the amounts so withheld
within 20 (twenty) business days of the resolution of that legal
action or official intervention or upon any other resumption of
the development. Any interest that may have accrued in respect of
the account concerned shall simultaneously be released from this
account and be paid to the AKANI GROUP;
6.1.3. all loans shall in such case be repaid mutatis mutandis in
terms of the provisions of clause 6.2.8.
6.2. In the event that legal action or official intervention is instituted
that is substantially in challenge of any approval given for the AKANI
GROUP to take a financial or management interest in SILVERSTAR and
SILVERSTAR has secured all other approvals by which it would be
otherwise capable of proceeding with the development under the casino
licence, then -
6.2.1. the AKANI GROUP shall be entitled to withhold any instalment
payment that may then fall due; and
6.2.2. 40% (forty per cent) of all amounts withheld in terms of this
sub-clause shall be paid into a separate trust account and in
respect of which the AKANI GROUP shall have signing rights
together with a cession in security; and
6.2.3. all amounts shall be released for payment in full by AKANI
GROUP within 5 (five) business days of the resolution of that
legal action or official intervention or upon any other
resumption of the development; and
6.2.4. the remaining 60% (sixty per cent) shall be paid in full by the
AKANI GROUP within a further 15 (fifteen) business days
thereafter; and
6.2.5. the AKANI GROUP shall be entitled to withhold 100% (one hundred
percent) of such amounts or instalments to the extent that the
legal action or official intervention has caused a delay in
excess of 6 (six) months, but shall make payment if full of the
amount so withheld within 20 (twenty) business days of the
resolution of that legal action or official intervention or upon
any other resumption of the development; and
6.2.6. any interest that may have accrued in respect thereof shall be
simultaneously released from this account and distributed to the
AKANI GROUP; and
6.2.7. the AKANI GROUP may in its discretion decide to proceed with
the development and/or continue making loans to SILVERSTAR under
a separate agreement and upon reasonable terms and conditions
with the intention that such loans shall enable SILVERSTAR to
proceed with and complete the development under the casino
licence and commence and maintain operations thereunder; and
6.2.7.1. the AKANI GROUP shall be permitted to charge interest on
all loans at the prime rate; and
6.2.7.2. the options shall automatically extend such that they
may be exercised for the benefit of the AKANI GROUP within a
period of 3 (three) years from the commencement of such
litigation; and
6.2.7.3. the compensation payment shall escalate at the prime
rate, provided that all interest in respect of the amounts
paid into the trust account referred to in clause 6.2.2
shall be paid for the benefit of the AKANI GROUP; and
6.2.8.
6.2.8.1. should the AKANI GROUP, in consequence of any
unfavourable ruling pursuant to that litigation or official
intervention, be rendered unable to exercise the options,
then the options shall be deemed to have lapsed and AKANI
GROUP shall continue to provide such loans to SILVERSTAR
which are reasonable for the purpose; and
6.2.8.2. SILVERSTAR shall be granted a period of a further one
year from the date it shall be so notified by the AKANI
GROUP for SILVERSTAR to establish such alternative financing
arrangements that shall enable SILVERSTAR to repay the AKANI
GROUP for the development and operating finance provided;
and
6.2.9. alternatively, should the AKANI GROUP decide to continue with
the development or retain its interest in SILVERSTAR, it is
entitled to exercise the options and/or to cede all rights
therein or the shareholding in SILVERSTAR, as the case may be, to
a third party which is not covered by any restriction (other than
Competition Commission approval) to acquire an interest in
SILVERSTAR. For the avoidance of doubt, the event concerned shall
not in itself prohibit the AKANI GROUP from exercising the
options on the basis that the AKANI GROUP shall in its discretion
be entitled to decide whether or not to terminate this agreement
or to proceed with the development on the basis of disposing of
these interests or shareholding in SILVERSTAR to a third party,
which is not covered by any restriction (other than Competition
Commission approval), as the case may be; and
6.2.10. in the event that the AKANI GROUP elects to make cession to a
third party, the obligation to make any payment in terms of this
agreement shall not itself be ceded and shall remain an
obligation of the AKANI GROUP.
6.3. To the extent that any unfavourable ruling is given against the AKANI
GROUP and/or SILVERSTAR, as the case may be, in terms of the
provisions of clause 6.1 or clause 6.2, and the AKANI GROUP and/or
SILVERSTAR, as the case may be, elects not to pursue, or has
exhausted, any available remedy in law, all amounts paid by the AKANI
GROUP into the trust account, together with interest accrued in
respect thereof, shall forthwith be repaid to the AKANI GROUP.
7. TERMINATION
7.1. This agreement may only be terminated under the following
circumstances -
7.1.1. immediately upon receipt of a ruling against the AKANI GROUP
and/or SILVERSTAR, as the case may be, in terms of the provisions
of clause 6.1 or clause 6.2 and the AKANI GROUP and/or
SILVERSTAR, as the case may be, elects not to pursue, or has
exhausted, any available remedy in law or that it made use of any
other provisions contained in clause 6;
7.1.2. at the election of the AKANI GROUP in the event of a breach by
SILVERSTAR or any GRANTOR of clause 8;
7.1.3. if the bid commitments and/or the terms and conditions of the
licence are not reasonably acceptable to the AKANI GROUP; or
7.1.4. if those bid commitments and/or terms and conditions be of such
a nature that, in the entire discretion of the AKANI GROUP, there
results a development budget deficit beyond that which can be
accommodated; and
7.1.5. bona fide discussions between the AKANI GROUP and the incumbent
individuals fail to identify alternative means by which the issue
relating to the arrival of the trigger events can be accommodated
and the AKANI GROUP in its entire discretion remains of the
opinion that such aspect is material to the successful
development and operation of the casino; then
7.1.6. the AKANI GROUP may elect to terminate this agreement by giving
notice to such effect to the other parties and to all grantors no
later than one month from notification by the board of the bid
commitments and terms and conditions that they will finally
approve;
7.2. In the event of a termination, this agreement shall be deemed to have
terminated but clause 5.7 shall remain in force and effect and binding
upon SILVERSTAR and GRANTOR.
8. EXCLUSIVITY
The parties shall work together with a view to implement the transaction
successfully and as soon as possible in the circumstances. They agree that
they shall not be entitled to commence negotiations with any third party in
respect of the subject transaction until such time as this agreement has
been terminated. Neither SILVERSTAR nor the GRANTOR shall under any
circumstances whatsoever be entitled during the duration of this agreement
to become interested in any other negotiations in terms of which any third
party will acquire any interest in SILVERSTAR or the licence that might be
prejudicial to the AKANI GROUP's ability to enjoy full and timely benefit
of its rights associated with this agreement.
9. ANNOUNCEMENTS
No announcement shall be made by any party until such time as allowed by
the other or as may be required by law and a request by one party for
allowance by the other shall be given consideration on a
time-is-of-the-essence basis. Should any announcement be required by law,
adequate and timely notice shall be given to the other parties as to the
content and timing of any such announcement. For
the purposes of this clause, notification by one party to another may be
made by e-mail at the addresses listed in clause 13.
10. DISCLOSURE
10.1.Except as indicated herein, the parties acknowledge that any
information supplied in connection with this agreement or in
connection with each other's business affairs which has or may in any
way whatsoever be transferred or come into the possession or knowledge
of any of them ("the receiving party") may consist of confidential or
proprietary information, disclosure of which to or use by third
parties might be damaging to the party concerned.
10.2.The receiving party therefore agrees to hold such material and
information in the strictest confidence, to prevent any copying
thereof by whatever means and not to make use thereof other than for
the purposes of this option agreement and to release it only to such
properly authorised directors, employees or third parties requiring
such information for the purposes of this option agreement and agree
not to release or disclose it to any other party who has not signed an
agreement expressly binding himself not to use or disclose it other
than for the purposes of this agreement.
10.3.The undertaking and obligations contained in this clause 10 do not
apply to information which -
10.3.1. is publicly available at the date of disclosure or thereafter
becomes publicly available from sources other than the parties;
10.3.2. is already in possession of the receiving party prior to its
receipt by or disclosure to such receiving party;
10.3.3. is required by law or any regulatory authority to be
disclosed;
10.3.4. after being disclosed to the receiving party is disclosed by
any other person to the receiving party otherwise than in breach
of any obligation of confidentiality.
10.4.The parties shall take such precautions as may be necessary to
maintain the secrecy and confidentiality of such material and
information in respect of its directors, employees, agents and/or
directors or employees or agents of any assignee, sub-contractor or
distributor or any other person to whom such confidential information
may have been or will be disclosed.
11. BREACH
If, after the entering into of the agreements for the options, any party
("the defaulting party") breaches any material term and/or condition of
this option agreement and fails to remedy such breach within a period of 14
(fourteen) days after receipt of written notice from any other party to
remedy same, the aggrieved party shall be entitled, without prejudice to
any other rights which it may have in terms of this agreement or at law, to
cancel this agreement or to claim immediate specific performance, in either
case without prejudice to its rights to claim damages.
12. SIGNATURE IN COUNTERPARTS
This option agreement may be executed in several counterparts, whether by
way of facsimile or otherwise, each of which shall, taken together,
constitute one and the same instrument.
13. DOMICILIUM CITANDI ET EXECUTANDI
13.1.The parties choose as their domicilia citandi et executandi for all
purposes under this option agreement, whether in respect of court
process, notices or other documents or communications of whatsoever
nature the following addresses :
13.1.1. GRCR:
Physical: Gold Xxxx Xxxx
Xxxx 0
Xxxxxxxx Xxxxxxx
Xxxxxxx
Telefax: (011) 248-6886
e-mail:
13.1.2. ALI:
Physical: Gold Xxxx Xxxx
Xxxx 0
Xxxxxxxx Xxxxxxx
Xxxxxxx
Telefax: (011) 248-6886
e-mail:
13.1.3. GRANTOR :
Physical: c/o L&P Financial Services
Attn: Richard Arlove
Fifth Floor TM Building
Xxxx Xxxxxxxxx Street
Port St Louis
Mauritius
and with copy to Holdco
Telefax: x0 (000) 000 0000
e-mail: xxxxxxxxxxx@xx.xxx
13.1.4. SILVERSTAR:
Physical: x/x 00 Xxxxxxx Xxxxx Xxxx
Attn: Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxxxx 0000
Xxxxxxxxxxxx
Telefax: x00 00 000-0000
e-mail: xxxxxxx@xxxx.xx.xx
13.1.5. HOLDCO:
Physical: 0000 Xxxx Xxxxx XX. Xxxxx X
Attn: Xxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
XXX
Telefax: x0 (000) 000 0000
e-mail: xxxxxxxxxxx@xx.xxx
13.2.Any notice or communication required or permitted to be given in terms
of this option agreement shall be valid and effective only if in
writing but it shall be competent to give notice by telefax.
13.3.Either party may by notice to the other party change the physical
address chosen as its domicilium citandi et executandi to another
physical address in South Africa,or in respect of GRANTOR, HOLDCO, and
Century Casinos Africa (Pty) Limited, in the country their respective
domicile, or its telefax number, provided that the change shall become
effective on the 10th business day from the deemed receipt of the
notice by the other party.
13.4. Any notice to a party -
13.4.1. sent by courier in a correctly addressed envelope to it at its
chosen address shall be deemed to have been received on the 3rd
business day after sending (unless the contrary is proved);
13.4.2. delivered by hand to a responsible person during ordinary
business hours at the physical address chosen as its domicilium
citandi et executandi shall be deemed to have been received on
the day of delivery; or
13.4.3. sent by telefax to its chosen telefax number stipulated in
clause 13.1, shall be deemed to have been received on the date of
despatch (unless the contrary is proved).
13.5.Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
00.0.Xx the extent that any notice is given by a party, it shall equally
give notice by way of e-mail.
14. DETERMINATION
Should any dispute arise between the parties as to the quantification of
any amount, such dispute shall be referred to auditors
PricewaterhouseCoopers -
14.1. who shall act as experts and not as arbitrators;
14.2. who shall make a decision as soon as possible in the circumstances;
14.3. who shall allow each party to make written representations to them;
14.4.whose decision, except for manifest error, shall be final and binding
on the parties on the basis that PricewaterhouseCoopers shall decide
which party is responsible for their costs and expenses.
15. WHOLE AGREEMENT, NO AMENDMENT
15.1.This agreement constitutes the whole agreement between the parties
relating to the subject matter hereof.
00.0.Xx amendment or consensual cancellation of this option agreement or
any provision or term hereof or of any agreement, xxxx of exchange or
other document issued or executed pursuant to or in terms of this
agreement and no settlement of any disputes arising under this option
agreement and no extension of time, waiver or relaxation or suspension
of or agreement not
to enforce or to suspend or postpone the enforcement of any of the
provisions or terms of this agreement or of any agreement, xxxx of
exchange or other document issued pursuant to or in terms of this
agreement shall be binding unless recorded in a written document
signed by the parties (or in the case of an extension of time, waiver
or relaxation or suspension, signed by the party granting such
extension, waiver or relaxation). Any such extension, waiver or
relaxation or suspension which is so given or made shall be strictly
construed as relating strictly to the matter in respect whereof it was
made or given.
00.0.Xx extension of time or waiver or relaxation of any of the provisions
or terms of this agreement or any agreement, xxxx of exchange or other
document issued or executed pursuant to or in terms of this agreement,
shall operate as an estoppel against any party in respect of its
rights under this agreement, nor shall it operate so as to preclude
such party thereafter from exercising its rights strictly in
accordance with this agreement.
00.0.Xx the extent permissible by law no party shall be bound by any
express or implied term, representation, warranty, promise or the like
not recorded herein, whether it induced the contract and/or whether it
was negligent or not.
16. COSTS
Each party shall pay its own costs pursuant to the negotiation, drafting
and implementation of this agreement.
SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
DATE PLACE WITNESS SIGNATURE
1. Xxxxx Xxxxxxx//s// For: GOLD REEF CASINO RESORTS
01/12/2004 LIMITED
2. Xxxxxxxx Xxxxxxxx//s// Xxxxxxxxx Xxxxxxxxx//s//
1. Xxxxx Xxxxxxx//s// For: AKANI LEISURE INVESTMENTS
12/01/2004 (PROPRIETARY) LIMITED
2. Xxxxxxxx Xxxxxxxx//s// Xxxxxxx Moloko//s//
1. Xxxxx Xxxxxxx//s// For: SILVERSTAR DEVELOPMENT
12/01/2004 LIMITED
2. Xxxxxxxx Xxxxxxxx//s// Xxxx Xx Xxxxx//s//
1. Xxxxx Xxxxxxx//s// For: CENTURY RESORTS LIMITED
12/01/2004 2. Xxxxxxxx Xxxxxxxx//s// Xxxxxxxxx Xxxxxxx//s//
1. Xxxxx Xxxxxxx//s// For: CENTURY CASINOS
12/01/2004 INCORPORATED
2. Xxxxxxxx Xxxxxxxx//s// Xxxxxxxxx Xxxxxxx//s//
TABLE OF CONTENTS
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CLAUSE NUMBER AND DESCRIPTION PAGE
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1. INTERPRETATION...........................................4
2. OPTION...................................................8
3. INDIVISIBLE TRANSACTION.................................13
4. TRIGGER EVENTS AND CLOSING DATE.........................14
5. GENERAL UNDERTAKINGS....................................15
6. LITIGATION AND SUSPENSION OF COMPENSATION PAYMENT.......17
7. TERMINATION.............................................21
8. EXCLUSIVITY.............................................22
9. ANNOUNCEMENTS...........................................22
10. DISCLOSURE..............................................23
11. BREACH..................................................24
12. SIGNATURE IN COUNTERPARTS...............................24
13. DOMICILIUM CITANDI ET EXECUTANDI........................24
14. DETERMINATION...........................................27
15. WHOLE AGREEMENT, NO AMENDMENT...........................27
16. COSTS................................................. 28
