STOCK PURCHASE AGREEMENT
BY AND AMONG
TRANS WORLD GAMING CORP.,
21ST CENTURY RESORTS A.S.,
GAMEWAY LEASING LIMITED.,
MONARCH LEASING LIMITED
AND
THE NAMED INDIVIDUALS
DATED: JANUARY __, 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I AGREEMENT AND PURCHASE AND SALE; CLOSING;
DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Deliveries by the Sellers and the
Company Entities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.5 Deliveries by the Buyer. . . . . . . . . . . . . . . . . . . . . . . . . 7
1.6 Payments at Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.7 Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
ENTITIES AND THE SELLERS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Ownership of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Sellers' Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Binding Effect; No Violation; Consents . . . . . . . . . . . . . . . . . 10
2.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.6 Commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . 10
2.8 Compliance with Laws and Terms of License. . . . . . . . . . . . . . . . 11
2.9 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.10 Due Organization; Qualification . . . . . . . . . . . . . . . . . . . . 11
2.11 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.12 Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.13 Binding Effect; No Violation; Consents . . . . . . . . . . . . . . . . . 12
2.14 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.15 Absence of Changes or Events; No
Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . 14
2.16 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.17 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.18 Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.19 Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . 17
2.20 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.21 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.22 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.23 Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.24 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.25 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.26 No Condemnation or Expropriation . . . . . . . . . . . . . . . . . . . . 24
2.27 Suppliers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.28 Contracts and Commitments. . . . . . . . . . . . . . . . . . . . . . . . 24
PAGE
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2.29 Compliance with Applicable Law . . . . . . . . . . . . . . . . . . . . . 26
2.30 Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.31 Assets Necessary to Business . . . . . . . . . . . . . . . . . . . . . . 27
2.32 Commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.33 Disclosure of All Material Facts . . . . . . . . . . . . . . . . . . . . 28
ARTICLE III REPRESENTATION AND WARRANTIES OF THE BUYER. . . . . . . . . . . . . . . . . . 28
3.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.2 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Binding Effect; No Violation; Consents . . . . . . . . . . . . . . . . . 28
3.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.5 Commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE IV COVENANTS OF THE SELLERS AND THE COMPANY ENTITIES . . . . . . . . . . . . . . 30
4.1 Operation of the Business. . . . . . . . . . . . . . . . . . . . . . . . 30
4.2 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.3 Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.4 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.5 Governmental Filings . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.6 Performance; Resignations. . . . . . . . . . . . . . . . . . . . . . . . 34
4.7 Updating of Information. . . . . . . . . . . . . . . . . . . . . . . . . 35
4.8 Monthly Financial Statements; Weekly Gaming Revenue Reports;
Employment Information Updates . . . . . . . . . . . . . . . . . . . . 35
4.9 Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.10 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.11 Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE V COVENANTS OF THE BUYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.1 Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.2 Governmental Filings . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.3 Confidentiality of Information . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VI OTHER MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.1 Site Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.2 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VII CONDITIONS TO OBLIGATION OF THE BUYER . . . . . . . . . . . . . . . . . . . . 42
7.1 Representations and Warranties Correct . . . . . . . . . . . . . . . . . 42
7.2 Performance; No Default. . . . . . . . . . . . . . . . . . . . . . . . . 42
7.3 Delivery of Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 42
7.4 Opinion of Counsel to the Stock Company Entities . . . . . . . . . . . . 42
7.5 Good Standing Certificates . . . . . . . . . . . . . . . . . . . . . . . 42
7.6 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.7 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.8 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . 43
7.9 Absence of Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 43
PAGE
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7.10 Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.11 Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.12 Non-Competition and Non-Interference Agreements. . . . . . . . . . . . . 43
7.13 Delivery of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII CONDITIONS TO OBLIGATION OF THE SELLERS . . . . . . . . . . . . . . . . . . . 44
8.1 Representations and Warranties Correct . . . . . . . . . . . . . . . . . 44
8.2 Performance; No Default. . . . . . . . . . . . . . . . . . . . . . . . . 44
8.3 Delivery of Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 44
8.4 Opinion of Counsel to the Buyer. . . . . . . . . . . . . . . . . . . . . 44
8.5 Good Standing Certificate. . . . . . . . . . . . . . . . . . . . . . . . 44
8.6 Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.7 Articles of Incorporation. . . . . . . . . . . . . . . . . . . . . . . . 45
8.8 Absence of Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.9 Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.10 Delivery of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE IX CERTAIN ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 45
9.1 Noncompetition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.2 Non-Interference Agreement . . . . . . . . . . . . . . . . . . . . . . . 46
9.3 Covenant Not to Disclose . . . . . . . . . . . . . . . . . . . . . . . . 46
9.4 Proviso for Activities of Xx. Xxxxxx and Legal Obligations . . . . . . 47
ARTICLE X TERMINATION; SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.1 Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . 47
10.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.3 Survival of Representations. . . . . . . . . . . . . . . . . . . . . . . 49
10.4 Statements as Representations. . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.1 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.3 Press Releases and Announcements . . . . . . . . . . . . . . . . . . . . 49
11.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.5 Amendment; Extension and Waiver. . . . . . . . . . . . . . . . . . . . . 50
11.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.8 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.9 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.10 Words in Singular and Plural Form . . . . . . . . . . . . . . . . . . . 54
11.11 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.13 Sellers' Representative; Agent for Service. . . . . . . . . . . . . . . 54
11.14 No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . . 55
11.15 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.16 Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 55
11.17 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
EXHIBITS AND SCHEDULES
EXHIBITS
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Exhibit A - Escrow Agreement
Exhibit B - Plans for Construction of Casino in Rozvadov and Chvalovice, Czech Republic
Exhibit C - [DELETED]
Exhibit D - Opinion of Xxxxxx and Poliakoff, P.A.
Exhibit E - Opinion of Xxxxxx Xxxxxx & Xxxxxxx
Exhibit F - Non-Competition and Non-Interference Agreement
Exhibit G - Xxxx of Sale and Assignment of Assets
Exhibit H - Assignment of Trademarks
Exhibit I - Allocation of Purchase Price
Exhibit J - Selling Stockholders' Liability Percentages
Exhibit K - Debtors and Accruals of the Stock Company Entities
Exhibit L - Xxxxxxxx Report
Schedules
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1.1 Assets to be Acquired
2.1 Share Ownership of Sellers
2.7 Affiliated Transactions
2.10A Articles and By-Laws of the Company Entities
2.10B Jurisdictions Where Qualified to do Business
2.11 Subsidiaries
2.13 Approvals Required
2.14 Financial Statements
2.15A Absence of Changes
2.15B Undisclosed Liabilities
2.16A Real Property
2.16B Leased Property
2.16C Property Use
2.17A Leases Where Company Entity is Lessee
2.17B Leases Where Company Entity is Lessor
2.18 Title to Assets
2.19A Tangible Personal Property
2.19B Leased Tangible Personal Property
2.19C Gaming Devices
2.19D Liens on Tangible Personal Property
2.20 Intellectual Property
2.21A Legal Claims of the Company Entities
2.21B Legal Claims Against the Company Entities
2.22A Insurance Policies
2.22B Invalid Insurance Policies
2.23 Labor Matters
2.24 Employee Benefit Plans
2.25A Environmental Compliance
2.25B Environmental Claims
2.25C Storage Locations
2.27 Suppliers
2.28 Contracts
2.29A Compliance with Law
2.29B Permits
2.29C Applications
2.29D License
2.30 Bank Accounts
2.32 Commissions
3.3 Consents Required to be Obtained by the Buyer
3.5 Buyer Commissions
4.1 Capital Budget
4.10 Interest on Indebtedness
9.1 Exception to Restricted Area
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as
of January __, 1998, by and among TRANS WORLD GAMING CORP., a Nevada, United
States of America corporation ("TWG" or the "Buyer"), and 21st CENTURY
RESORTS a.s., a Czech Republic joint stock company ("Resorts"), GAMEWAY
LEASING LIMITED, a Gibraltar company limited by shares ("Gameway"), MONARCH
LEASING LIMITED, a Gibraltar company limited by shares ("Monarch") and Xxxx
X. Xxxxxx, Xxx Xxxxxx, X.X. Xxxxx, Xxxxx Xxxxx, JUDr. Xxxxxx Xxxxxx, Xxxxx
XxXxxxx, Xxxxx Xxxxxxxxx, and Dr. Xxxx Xxxxxx (each of Resorts, Gameway,
Monarch, and the named individuals individually herein, a "Seller," and
collectively herein, the "Sellers"). All of the above-cited parties shall be
collectively referred to herein as the "Parties" and individually referred to
herein as a "Party."
WITNESSETH:
WHEREAS, (except for one share owned by LMJC, defined below), one
or more of the Sellers, together or individually, own 100% of the outstanding
voting and non-voting ownership interests in or equity securities of Resorts,
such ownership is as set forth on SCHEDULE 2.1, attached hereto and made a
part hereof;
WHEREAS, Resorts owns 100% of the outstanding voting and non-voting
ownership interests in or equity securities of LMJ Casino a.s., a Czech
Republic joint stock company in liquidation ("LMJC") (except for 1 share
owned by Xx. Xxxxxx), Czech Leisure Management s.r.o., a Czech Republic
limited liability company ("CLM"), LMJ Casino Rozvadov a.s., a Czech Republic
joint stock company ("LMJCR"), LMJ Slots s.r.o., a Czech Republic limited
liability company ("LMJS") and LMJCR owns approximately 98.3% and Resorts
owns approximately 1.7% of the outstanding voting and non-voting ownership
interests in or equity securities of Atlantic Properties s.r.o., a Czech
Republic limited liability company ("Atlantic"). (Resorts, LMJC, CLM, LMJCR,
LMJS, Atlantic, Gameway and Monarch collectively are referred to herein as
the "Company Entities" and individually as a "Company Entity."); and,
WHEREAS, the Sellers desire to sell to the Buyer and the Buyer
desires to purchase from the Sellers 100% of the voting and non-voting
ownership interests in or equity securities (the "Shares") of Resorts, LMJCR,
LMJS and Atlantic (collectively, herein referred to as the "Stock Company
Entities" or, individually, a "Stock Company Entity") and certain assets of
Monarch and Gameway (collectively herein referred to as the "Asset Sellers")
all on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
Stock Purchase Agreement
Page 2
ARTICLE I
AGREEMENT AND PURCHASE AND SALE; CLOSING; DELIVERIES
1.1 PURCHASE AND SALE
(a)(i) Upon the terms and subject to the satisfaction or
waiver, if permissible, of all of the conditions set forth herein, the
Sellers who are set forth in SCHEDULE 2.1 (the "Selling Stockholders") hereby
agree to sell, convey, transfer and deliver to the Buyer at the Closing (as
defined in Section 1.3 below), and the Buyer agrees to purchase and accept
from such Selling Stockholders at the Closing, all of the Shares, free and
clear of any and all mortgages, pledges, security interests, liens, charges,
options, conditional sales agreements, claims, restrictions, covenants, title
defects or other encumbrances or restrictions of any nature whatsoever
("Liens"). SCHEDULE 2.1 sets forth the name, address, Social Security or
federal tax identification number or other suitable identification number and
telephone number of each Selling Stockholder.
(a)(ii) Immediately prior to the Closing Date, Resorts shall
transfer, convey and deliver to the Selling Stockholders or to such Person as
they shall nominate (being one of their number or otherwise) all of the
shares of capital stock owned by it in LMJC and CLM in proportions as
determined by the Selling Stockholders prior to the Closing Date.
(b) Upon the terms and subject to the satisfaction or
waiver, if permissible, of all of the conditions set forth herein, each of
Monarch and Gameway hereby agrees to sell, convey, transfer and deliver to
the Buyer at the Closing, and the Buyer agrees to purchase and accept from
each of Monarch and Gameway at the Closing, only such assets of each such
Company Entity as set forth in SCHEDULE 1.1 hereto (the "Assets").
(c) Upon the terms and subject to the satisfaction or
waiver, if permissible, of all of the conditions set forth herein, Xx. Xxxxxx
hereby agrees to sell, convey, transfer and deliver to the Buyer at the
Closing, and the Buyer agrees to purchase and accept from Xx. Xxxxxx at the
Closing, all of the Intellectual Property owned by Xx. Xxxxxx, as set forth
in SCHEDULE 2.20, relating to the names "21st Century Resorts" and "Casino
Club Europe" (or any variation or derivation thereof).
1.2 PURCHASE PRICE
(a) Upon the date of the exchange of executed originals of
this Agreement by the Parties, the Sellers' Representative (as defined below)
shall acknowledge in writing receipt of the sum of U.S.$40,000.00, which
shall represent the first of the three deposits (the "Deposits") made by TWG
as required hereby. On such date, TWG shall make a further deposit with the
Sellers' Representative of the sum of U.S.$100,000.00 (both the first and
second deposits shall be referred to was the "Expense Deposits"). The
Sellers' Representative shall thereupon acknowledge in writing receipt of
such sum.
Stock Purchase Agreement
Page 3
(b) Upon the date of the exchange of executed originals of
this Agreement by the Parties, TWG shall, by wire transfer, deposit into an
escrow account (the "Deposit Escrow") held by Chase Manhattan Bank, London,
England (the "Escrow Agent"), the sum of U.S.$385,000.00, which shall
represent the third of the three Deposits required to be made hereby and
which shall be placed in a 5-year escrow to cover Damage Claims (as defined
in Section 6.2(e)), including but not limited to claims for Taxes by the
Ministry of Finance of the Czech Republic or other applicable taxing
authorities and subject to the Escrow Agreement described below. The Escrow
Agent shall hold the Deposit Escrow in accordance with the Escrow Agreement
as set forth in Section 1.2(c), below.
(c) In consideration of the sale, transfer and conveyance of
the Shares and the Assets to the Buyer by the Sellers and the Asset Sellers,
respectively, and of the other agreements of the Sellers and the Asset
Sellers, as set forth herein, the Buyer will deliver, or cause to be
delivered, to the Sellers and the Asset Sellers, at the Closing,
U.S.$10,500,000.00 (plus U.S.$655,432.38, plus an additional cash amount to
reimburse the Sellers for documented expenditures made from the date hereof
until the Closing in connection with the construction of the casinos in
Rozvadov and Chvalovice as set forth in EXHIBIT B, which is attached hereto
and made a part hereof (the "New Casinos") which sum shall be paid in U.S.
dollars converted at the rate prevailing on the date when this sum shall be
remitted to Xxxxxxx Xxxxxxx pursuant to Section 1.6 hereof), plus cash on
hand less the outstanding chip liability at all of the casinos as of the
close of business on the Business Day immediately preceding the Closing Date
(as determined by a count conducted jointly by Buyer and Sellers)(such net
amount hereinafter referred to as the "Purchase Price"), less the amount of
the two Deposits paid to the Sellers' Representative as set forth in Section
1.2(a), less the amount of the Deposit Escrow, less the interest accrued on
the Deposit Escrow, less the U.S.$15,000.00, which shall be deposited by TWG
into the Deposit Escrow on the Closing Date (the sum of such net amount
hereinafter referred to as the "Closing Payment"). The escrow agreement (the
"Escrow Agreement"), the form of which is attached hereto as EXHIBIT A, will
be executed by and among the Buyer, the Selling Stockholders and the Escrow
Agent, on the date of the exchange of the execution copies of this Agreement.
The additional consideration to be paid by the Buyer to Xx. Xxxxxx for the
Intellectual Property at the Closing shall be U.S.$10.00. TWG shall assume
no liabilities of any Company Entity, except those liabilities of Resorts for
the Indebtedness incurred in connection with the construction of the New
Casinos pursuant to EXHIBIT B. The Closing Payment shall be paid at the
Closing to Xxxxxxx Xxxxxxx Solicitors, London, England ("Xxxxxxx Xxxxxxx"),
who shall apportion the Closing Payment among the Sellers and the Asset
Sellers pursuant to their respective instructions.
(d) After the Closing Date and during the term of the
Deposit Escrow, pursuant to the terms of the Escrow Agreement, the Escrow
Agent promptly shall disburse an amount of funds held in the Deposit Escrow
to the Buyer at any time prior to the Escrow Termination Date (defined below)
as may be requested by the Buyer in writing from time to time (with a copy to
the Sellers' Representative), which request (if it relates to a claim for
Taxes) shall enclose a copy of the correspondence, demand or order of the
Ministry of Finance of the Czech Republic, or any other
Stock Purchase Agreement
Page 4
applicable taxing authority, received by the Buyer requesting or demanding
that the Buyer pay any Tax that was incurred by any Stock Company Entity
prior to the Closing Date. If the Buyer has not requested disbursement from
the Deposit Escrow for payment of a Damage Claim (other than for Taxes)
within 365 days of the Closing Date, then the Escrow Agent shall disburse
U.S.$250,000.00, together with the interest accrued thereon, to the Sellers'
Representative within 5 Business Days thereafter by wire transfer. If,
however, a request for a disbursement by the Buyer has been made and is
pending, or if the Buyer notifies the Escrow Agent and the Sellers'
Representative that a Damage Claim is imminent and that such Damage Claim
exceeds or is likely to exceed U.S.$100,000.00 either on its own or when
taken together with other such Damage Claims, then the Escrow Agent shall not
disburse any funds to the Sellers' Representative until such Damage Claim is
resolved. The remainder of the Deposit Escrow, if any, shall be disbursed to
the Selling Stockholders or to the appropriate taxing authority in amounts as
specified by the Sellers' Representative to the Escrow Agent, in writing,
upon the earlier of the following four events to occur: (i) the receipt by
the Escrow Agent and the Buyer of written documentation from the Ministry of
Finance of the Czech Republic or any other applicable taxing authority, that
it has determined the total Tax liability of the Stock Compan Entities for
the period ending on the Closing Date and the Sellers' Representative
produces documentary evidence, satisfactory to the Buyer, that such liability
has been paid in full or may be paid in full from the proceeds of the Deposit
Escrow; or (ii) the receipt by each of the Escrow Agent, the Buyer and the
Selling Stockholders of an unqualified written opinion of counsel appointed
jointly by both the Buyer and the Selling Stockholders, upon which the Escrow
Agent, the Selling Stockholders and the Buyer may rely, that the applicable
statute of limitations for the assessment of Taxes by the Ministry of Finance
of the Czech Republic, or any other applicable taxing authority, against all
of the Stock Company Entities has expired and that no Tax may be requested,
levied, claimed, demanded, or executed upon by the Ministry of Finance of the
Czech Republic, or any other applicable taxing authority, against any of the
Stock Company Entities or the Buyer with respect to a Tax liability of any
Stock Company Entity; or (iii) the date that is the fifth anniversary of the
Closing Date of this Agreement; or (iv) the failure of the Buyer to fulfill
the requirements of Section 1.2(e) below (any of subsections (i), (ii), (iii)
or (iv) is the "Escrow Termination Date"). For purposes of this Agreement, a
"Business Day" shall be any day (except a Saturday or a Sunday) on which
banks are permitted by English law to be open for business in England.
(e) The Buyer shall, within 275 days after the Closing Date,
apply to the Ministry of Finance of the Czech Republic for a tax audit of the
Stock Company Entities with respect to the period prior to the Closing Date.
(f) TWG shall pay for one-half of the fees and expenses of
the Escrow Agent and such jointly appointed counsel and the Selling
Stockholders shall pay for one-half of the fees and expenses of the Escrow
Agent (which amount may be deducted by the Escrow Agent from the principal
balance of the Deposit Escrow) and such jointly appointed counsel. If TWG
and the Selling Stockholders cannot agree upon counsel to perform the tasks
set forth in Section 1.2(d), above, within 10 Business Days after written
notice is given by the Sellers' Representative of its
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nominee, then such counsel shall be Xxxxxxxx Chance, London, England, unless
such counsel notifies the parties of a conflict of interest after internal
review, in which case such counsel shall be Xxxxxx Xxxxxxxx, Xxxxxx, Xxxxxxx.
1.3 CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall occur after the satisfaction or waiver,
if permissible, of all of the conditions set forth herein. The Parties
hereto shall use their best endeavors to have the Closing occur at 11:00
a.m., Prague, Czech Republic Time, on a date that is on or before a date that
is the 10th day after the delivery of the certificate required by Section
8.6, or on such other date as the Buyer and the Sellers' Representative may
agree upon in writing (the "Closing Date"), at the offices of Xxxxxx &
Poliakoff, P.A., Xxxxxxxxxxx 0, Xxxxxx, Xxxxx Xxxxxxxx. The Closing of this
Agreement and the transactions contemplated hereby shall be deemed effective
for all purposes as of close of business on the Closing Date (the "Effective
Date").
1.4 DELIVERIES BY THE SELLERS AND THE COMPANY ENTITIES. At the
Closing, the Sellers will deliver, and will cause each applicable Company
Entity to deliver (unless previously delivered), to the Buyer the following:
(a) stock certificates representing all of the Shares,
accompanied by stock powers duly executed or endorsed in blank, with
signatures guaranteed, and/or otherwise in form reasonably acceptable to the
Buyer for transfer on the books of the Company Entities, respectively;
(b) the stock books, stock ledgers, minute books and the
corporate seals of each of the Stock Company Entities;
(c) copies of the Articles of Association or other
comparable organizational or governing documents of each of the Stock Company
Entities;
(d) the Escrow Agreement duly executed by all of the Selling
Stockholders and the Escrow Agent;
(e) the certified resolutions referred to in Section 2.12;
(f) the bank account records referred to in Section 2.30;
(g) executed counterparts of any consents referred to in
Section 4.4;
(h) the executive officer certificate referred to in Section
7.3;
(i) the opinion of counsel referred to in Section 7.4;
(j) resignations effective as of the Closing Date from such
officers, supervisory board
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members and directors of the Company Entities as the Buyer shall have
requested in writing not less than 7 days prior to the Closing Date pursuant
to Section 4.6 (other than the one member of the Supervisory Board of LMJCR
appointed by LMJCR's employees);
(k) a Xxxx of Sale and Assignment of Assets, as set forth in
EXHIBIT G, executed by authorized executive officers of Monarch and Gameway,
selling, transferring, delivering and conveying the Assets to the Buyer;
(l) the Non-Competition and Non-Interference Agreements duly
executed by all of the Selling Stockholders pursuant to Sections 9.1 and 9.2;
(m) an Assignment of Trademarks, as set forth in EXHIBIT H,
executed by Xx. Xxxxxx, selling, transferring, assigning, conveying and
delivering the trademarks relating to "21st Century Resorts" and "Casino Club
Europe," and all rights to the license agreements relating thereto, to the
Buyer;
(n) the transfer, conveyance and delivery by Resorts of all
of the shares of ownership interests in or capital stock owned by it in LMJC
and CLM to the Selling Stockholders (or as they may direct) in proportions as
determined by the Selling Stockholders prior to the Closing Date;
(o) written confirmation from Eagle Leisure Management,
Limited that all agreements for services between it and the Stock Company
Entities shall terminate at Closing;
(p) written certification from the Treasurer (or Chief
Financial Officer) of each of the Stock Company Entities that the bank
accounts of each Stock Company Entity to be transferred to the Buyer pursuant
hereto shall contain funds in amounts equal to all liabilities of the
respective Stock Company Entities as of the Closing Date, after making
allowance for all debtors and accruals and excluding any sum due in respect
of the New Casinos for which liability has been assumed by the Buyer
hereunder, all (the bank account balances and related deductions) as set
forth in EXHIBIT K, attached hereto and made a part hereof. If the
Schoolhouse is sold by the Stock Company Entities prior to the Closing Date,
the bank accounts shall contain the full cash purchase price thereof;
(q) a copy of the resolutions of the Board of Directors of
each of the Stock Company Entities required to be obtained pursuant to
Section 7.10 of this Agreement; and,
(r) all other previously undelivered documents, instruments
or writings required to be delivered by any of the Sellers or the Company
Entities to the Buyer at or prior to the Closing pursuant to this Agreement
or otherwise required in connection herewith as agreed by the Buyer and the
Sellers' Representative, including but not limited to, all Licenses (as
defined in Section 2.29(d)).
Stock Purchase Agreement
Page 7
1.5 DELIVERIES BY THE BUYER. At the Closing, the Buyer shall
deliver, or cause to be delivered, to the Sellers' Representative (unless
previously delivered) the following:
(a) the payments as required by Section 1.6;
(b) written confirmation that any sum required to be paid in
advance of the Closing pursuant to Section 1.2 has been paid;
(c) the Escrow Agreement duly executed by the Buyer;
(d) the deposit of a total of U.S.$400,000.00 into the
Deposit Escrow as required by Sections 1.2(b) and 1.2(c);
(e) the certified resolutions referred to in Section 3.2;
(f) the executive officer certificate referred to in Section
8.3;
(g) the opinion of counsel referred to in Section 8.4;
(h) a written covenant not to xxx Xxxxx Xxxxxxxx, Xxxx Xxxxx
Xxxxxx, Xxxxx Petrzikova, Xxxx Bramsworth Xxxxxxx and/or Xxxxxxx Xxxxxxx all
of whom have acted as non-stockholder supervisory directors of the Stock
Company Entities; and,
(i) all other previously undelivered documents, instruments
or writings required to be delivered by the Buyer to the Sellers at or prior
to the Closing pursuant to this Agreement or otherwise required in connection
herewith as agreed by the Buyer and the Sellers' Representative.
1.6 PAYMENTS AT CLOSING. At the Closing, the Buyer shall deliver
(i) a written release of the funds held by Xxxxxxx Xxxxxxx which shall have
been remitted by wire transfer of immediately available funds to the account
of Xxxxxxx Xxxxxxx on behalf of the Selling Stockholders entitled thereto, in
an aggregate amount equal to the Closing Payment which funds shall have been
received by Xxxxxxx Xxxxxxx and held in trust not less than 24 hours before
the Closing, (ii) by wire transfer of immediately available funds to the
account or accounts specified by the Sellers' Representative on behalf of the
Sellers entitled thereto, an aggregate amount equal to the amount contained
in the account of LMJCR at HypoBank CZ a.s. (account no. 8100230002), which
amount is approximately DM362,688, representing a reimbursement to the
Sellers of the deposit for the casino license owned by LMJCR held by the
Ministry of Finance of the Czech Republic pursuant to the Czech Gaming Laws
(as defined hereafter); (iii) to the Xxxxxx Xxxxx, X.X.x00,000.00
representing the remaining portion of the Deposit Escrow; and (iv) the
payment to Xx. Xxxxxx of U.S.$10.00 by check or wire transfer to the account
specified by Xx. Xxxxxx.
1.7 ALLOCATION. The Buyer and the Sellers hereby agree that the
Purchase Price for the
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Page 8
Assets (i.e., U.S.$500,000.00) and all other capitalized costs (in the case
of the Buyers) and all selling expenses (in the case of the Sellers) shall be
allocated and apportioned among the Assets acquired for all income tax
accounting purposes in proportion to the relative fair market values of the
Assets, as set forth on EXHIBIT I, which Exhibit shall be completed by the
Parties as soon as practicable after the execution of the Agreement. The
relevant Parties further agree to cooperate and be consistent with regard to
the filing of U.S. Internal Revenue Service ("IRS") Form 8594, or any similar
forms required by any Taxing authority with regard to the agreed upon
apportionment.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY ENTITIES AND THE SELLERS
The Company Entities, as applicable, represent and warrant to the
Buyer, and the Sellers, jointly and severally, to the best of their
knowledge, represent and warrant to the Buyer, that:
2.1 CAPITALIZATION.
(a)(i) The authorized capital of Resorts consists of Czech
Kc23,533,000 divided into 23,533 non-publicly traded named shares, each with
a nominal value of Czech Kc1,000, all of such shares are issued and
outstanding as of the date hereof.
(ii) The authorized capital of LMJCR consists of Czech
Kc15,000,000 divided into 200 non-publicly traded named shares, each with a
nominal value of Czech Kc75,000, all of such shares are issued and
outstanding as of the date hereof.
(iii) The authorized capital of LMJS consists of Czech
Kc100,000 owned entirely by Resorts.
(iv) The authorized capital of Atlantic consists of Czech
Kc6,000,000 of which Czech Kc100,000 is owned by Resorts and Czech
Kc5,900,000 is owned by LMJCR.
(b) The capital shares of Resorts are owned of record by
the Selling Stockholders and other Persons (as defined below) in the amounts
set forth on SCHEDULE 2.1, free and clear of all Liens.
(c) The capital shares of LMJCR, LMJS and Atlantic are
owned by Resorts as set forth in Section 2.1(a), above, free and clear of all
Liens.
(d) Except for the capital shares of LMJC, LMJCR, LMJS,
Atlantic and CLM owned by Resorts and except for the capital shares of
Atlantic owned by LMJCR, none of Resorts, Atlantic, LMJCR or LMJS, directly
or indirectly, owns any capital stock of or other equity interest
Stock Purchase Agreement
Page 9
in any Person (as defined below), and none of the Stock Company Entities is a
member of or participant in any partnership, joint venture or similar Person.
(e) All of the issued and outstanding capital shares of
each of Resorts, LMJCR and the interests in Atlantic and LMJS have been duly
authorized and are validly issued, fully paid and nonassessable, are not
subject to any preemptive rights and have not been issued in violation of any
applicable law, regulation, ordinance or policy of any governmental
authority, the respective Articles of Association or other comparable
organizational or governing document or Bylaws of each Stock Company Entity,
or the terms of any agreement to which any Seller or Stock Company Entity is
a party or is bound. There are no shares of capital stock or other equity
interest or securities of the Stock Company Entities reserved for issuance or
any outstanding subscriptions, options, warrants, rights, profit sharing
arrangements, convertible or exchangeable securities, stock appreciation
rights or other agreements or commitments (other than this Agreement)
granting to any corporation, individual, joint stock company, limited
liability company, joint venture, partnership, unincorporated association,
governmental regulatory entity, county, state, or political subdivision
thereof, trust or other entity (a "Person") any interest in or right to
acquire at any time, or upon the happening of any stated event, any shares of
the capital stock or other equity interest or securities of any Stock Company
Entity, or any interest in, exchangeable for or convertible into capital
stock or other equity interest or securities of any Stock Company Entity or
restricting any Selling Stockholder's right to transfer any of the Shares to
the Buyer.
2.2 OWNERSHIP OF SHARES. Each Selling Stockholder owns and has
an unqualified right to and shall transfer to the Buyer at the Closing, good,
valid and marketable title to the Shares set forth opposite such Selling
Stockholder's name on SCHEDULE 2.1, free and clear of all Liens. Other than
this Agreement, such Shares are not subject to any voting trust agreement or
understanding, whether written or oral, including without limitation, any
mortgage, indenture, note, guarantee, lease, license, contract, deed of
trust, purchase, sale or other agreement, together with any amendments
thereto (a "Contract"), including any Contract restricting or otherwise
relating to the voting or disposition of such Shares. SCHEDULE 2.1 sets
forth such Selling Stockholder's percentage interest of the Shares such
Selling Stockholders owns in each of the Company Entities as of the date of
this Agreement (the "Percentage Interest").
2.3 SELLERS' AUTHORITY. Each individual Seller has the requisite
individual power, capacity and authority under the laws of the jurisdiction
in which the Seller resides and of which the Seller is a citizen, to execute,
deliver and perform this Agreement and the other instruments and documents
required or contemplated hereby.
2.4 BINDING EFFECT; NO VIOLATION; CONSENTS. This Agreement
constitutes, and, when executed and delivered, the other documents and
instruments to be executed and delivered by each Selling Stockholder pursuant
hereto will constitute, valid and binding agreements of each Selling
Stockholder, enforceable in accordance with their respective terms, and
(assuming receipt of the consents, approvals and authorizations contemplated
by the next sentence) neither the execution
Stock Purchase Agreement
Page 10
and delivery of this Agreement or the other documents and instruments to be
executed and delivered by each Selling Stockholder pursuant hereto, nor the
consummation by each Selling Stockholder of the transactions contemplated
hereby or thereby will violate any statute or law or any rule, regulation,
order, writ, injunction, judgment or decree of any court or governmental
authority applicable to such Selling Stockholder. No consent, approval,
authorization or action by, notice to or filing with any governmental
authority or any other Person is required with respect to such Selling
Stockholder in connection with the execution, delivery and performance of
this Agreement, the other documents and instruments to be executed and
delivered by such Selling Stockholder pursuant hereto or the consummation by
such Selling Stockholder of the transactions contemplated hereby or thereby.
2.5 LITIGATION.
(a) There are no claims, actions, suits, proceedings or
investigations pending or threatened by or against any Selling Stockholder
with respect to the Company Entities, the Shares or the transactions
contemplated hereby, at law or in equity, before any federal, state,
municipal or other governmental department, commission, board, agency,
instrumentality or authority or court, tribunal, arbitrator or similar panel
of any jurisdiction.
(b) There are no claims, actions, suits, proceedings or
investigations pending or threatened by or against any Company Entity, at law
or in equity, before any federal, state, municipal or other governmental
department, commission, board, agency, instrumentality or authority or court,
tribunal, arbitrator or similar panel of any jurisdiction where the amount in
controversy is or could exceed U.S.$50,000.
2.6 COMMISSIONS. There are no claims for brokerage commissions
or finder's fees incurred by reason of any action taken by or on behalf of
any Seller.
2.7 TRANSACTIONS WITH AFFILIATES. Other than this Agreement, or
as set forth in SCHEDULE 2.7, none of the Company Entities is party to or
bound by any Contract with, does business with or has any obligations or
liabilities to any Seller or any Affiliate or Associate of any Seller.
SCHEDULE 2.7 also shall set forth a description of each Contract by and
between any Company Entity and Eagle Leisure Management Limited, a company
limited by shares incorporated under the laws of Cyprus, and shall enumerate
payments due pursuant to the terms of such Contract, payments actually made
and evidence of services provided to support the invoices from Eagle Leisure
Management Limited and a copy of the Contract shall be attached to such
Schedule. As used in this Agreement, an "Affiliate" of, or a Person
"Affiliated" with, a specified person, is a Person who directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified. Moreover, as used in
this Agreement, the term "Associate" used to indicate a relationship with any
Person, means: (a) any corporation or organization (other than the Company
Entities) of which such Person is an officer or partner or is, directly or
indirectly, the beneficial owner of 10 percent or more of any class of equity
securities,
Stock Purchase Agreement
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(b) any trust or other estate in which such Person has a substantial
beneficial interest or as to which such Person serves as trustee or in a
similar fiduciary capacity, and (c) any relative or spouse of such Person, or
any relative of such spouse, who has the same home as such Person or who is a
director or officer of the corporation or organization or any of its parents
or subsidiaries.
2.8 COMPLIANCE WITH LAWS AND TERMS OF LICENSE. No Seller is
aware of any facts or circumstances relating to the conduct of such Seller or
any other Seller or any Stock Company Entity that could reasonably be
expected to cause the Ministry of Finance of the Czech Republic or any other
governmental authority in the Czech Republic to revoke, suspend or fail to
renew the License (as defined in Section 2.29(d)) or take disciplinary or
enforcement action against any of the Stock Company Entities or any
shareholder or equityholder or director, supervisory board member or officer
thereof.
2.9 DISCLOSURE. No representation or warranty to the Buyer
contained herein contains any untrue statement of material fact or omits to
state a material fact that is necessary in order to make such representation
or warranty not misleading.
2.10 DUE ORGANIZATION; QUALIFICATION.
(a) Each of the Stock Company Entities is a corporation,
joint stock company or limited liability company, as the case may be, validly
existing, and in good standing under the laws of the jurisdiction of its
respective incorporation or organization and has all requisite corporate or
organizational power and authority to carry on its business as now conducted
and as proposed to be conducted through the Closing and to execute, deliver
and perform this Agreement and the other instruments and documents to be
executed and delivered in connection herewith and to carry out the
transactions contemplated hereby and thereby. Complete and correct copies of
the Articles of Association or other comparable organizational or governing
documents and Bylaws of each of the Stock Company Entities, and all
amendments or supplements thereto, heretofore have been delivered to Buyer,
are and will be, as of the Closing Date, complete, accurate and current and
are attached hereto as SCHEDULE 2.10A. The stock transfer books and the
minute books or similar records of each Stock Company Entity, which
heretofore have been delivered or made available to Buyer, are accurate,
complete and current.
(b) Each of the Stock Company Entities is duly qualified or
registered for the transaction of business and is in good standing in the
jurisdictions listed on SCHEDULE 2.10B, which are the only jurisdictions
other than its respective jurisdiction of organization, wherein the character
of the properties so owned or leased by or the nature of the business of each
such entity, makes such licensing or qualification to do business necessary,
except for such failure to so qualify or be licensed, which, when taken
together with all other such failures, has not had and is not reasonably
likely to have a material adverse effect on or change in, directly or
indirectly, the business, assets, liabilities, condition (financial or
otherwise), results of operations, operations or prospects of one or more of
the Stock Company Entities in excess of U.S.$50,000.00 (a "Material Adverse
Effect").
Stock Purchase Agreement
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(c) Prior to the Closing, each of the Company Entities will
deliver to the Buyer a complete and correct copy, certified by its Secretary
(or other appropriate executive officer), of the resolutions heretofore duly
and validly adopted by its Board of Directors, Supervisory Board or other
applicable governing body evidencing such authorization, which resolutions
will not have been rescinded prior to, and will be in full force and effect
on the date of, the Closing. No other corporate act or proceeding on the
part of any of the Company Entities is necessary to authorize this Agreement
or the other documents and instruments to be executed and delivered by the
Company Entities pursuant hereto or the transactions contemplated hereby or
thereby.
2.11 SUBSIDIARIES. Other than as noted in SCHEDULE 2.11, the
Stock Company Entities do not, directly or indirectly, have any subsidiaries
or any direct or indirect ownership interests in any Person.
2.12 DUE AUTHORIZATION The execution, delivery, and performance
of this Agreement and the execution and delivery of the other instruments and
documents required or contemplated hereby and the consummation of the
transactions contemplated hereby by each of the Company Entities have been
duly and validly authorized by the Board of Directors, Supervisory Board
Members and all shareholders, or other applicable governing authority of each
applicable Company Entity.
2.13 BINDING EFFECT; NO VIOLATION; CONSENTS. This Agreement
constitutes, and, when executed and delivered, the other documents and
instruments to be executed and delivered by each applicable Company Entity
pursuant hereto will constitute valid and binding agreements of each such
Company Entity enforceable in accordance with their respective terms, and
(assuming receipt of the consents, approvals and authorizations specifically
contemplated by the next sentence) neither the execution and delivery of this
Agreement and the other documents and instruments to be executed and
delivered by each applicable Company Entity pursuant hereto, nor the
consummation by each such Company Entity of the transactions contemplated
hereby or thereby will (i) violate or conflict with or result in any breach
of any provision of its Articles of Association or other comparable
organizational or governing documents, or Bylaws, (ii) violate or conflict
with or constitute a default (or an event that, with notice or lapse of time,
or both, would constitute a default) under or will result in the termination
of, or accelerate the performance required by, or result in the creation of
any Lien upon any of the assets under, any Contract to which any Company
Entity is a party or by which any Company Entity or its respective assets or
properties may be bound or affected, or (iii) violate any statute or law or
any rule, regulation, order, writ, injunction, judgment or decree of any
court or governmental authority, excluding from the foregoing clauses (ii)
and (iii) such defaults, rights and violations which, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Except for
consents, approvals or authorizations set forth on SCHEDULE 2.13, no consent,
approval, authorization or action by, notice to, or filing with, any
governmental authority or any other Person is required in connection with the
execution, delivery and performance of this Agreement, the other documents
and instruments to be executed and delivered by the Company Entities pursuant
hereto or the consummation by the Company
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Entities of the transactions contemplated hereby or thereby, except (in the
case of consents, approvals and notices required under Contracts) where the
failure to obtain such consents and approvals and give such notices could not
reasonably be expected to have a Material Adverse Effect.
2.14 FINANCIAL STATEMENTS. The following financial statements
(the "Financial Statements") of Resorts, Atlantic, LMJCR and LMJS have been
delivered to the Buyer by the Sellers and said Stock Company Entities:
(a) audited consolidated and unconsolidated balance sheets,
statements of income, statements of cash flows and changes in stockholders'
equity and the respective notes thereto of said Company Entities as at and
for the years ended December 31, 1996 and 1995 all certified by Lubbock Fine
as to Resorts, LMJCR and LMJS, whose respective reports thereon are included
therein. Prior to the Closing Date, the Stock Company Entities will deliver
to the Buyer a true, correct, complete and accurate copy of their respective
balance sheets and related statements of income, retained earnings and cash
flows for the eight fiscal months ended August 31, 1997. All of such balance
sheets and notes thereto are true, complete and accurate and fairly present
the assets, liabilities and financial condition of such Company Entities as
of the respective dates thereof, and such statements of income, cash flows
and changes in stockholders' equity and the notes thereto are true, complete
and accurate and fairly present the results of operations of the respective
Stock Company Entities for the periods therein referred to, all in accordance
with the relevant Czech accounting laws, including Act No. 563/1991 Coll., as
amended by Act No. 117/1994 Coll., consistently applied throughout the
periods involved.
(b) The statements of income included in the Financial
Statements do not contain any items of special or non-recurring income or
expense or any other income not earned or expense not incurred in the
ordinary course of business except as expressly specified therein, and such
Financial Statements include all adjustments (including all normal recurring
accruals for unusual or non-recurring items) considered necessary for a fair
presentation, and no adjustments or restatements are or will be necessary in
respect of any items of an unusual or non-recurring nature, except as
expressly specified herein. Except as described on such Financial Statements
and/or in SCHEDULE 2.14 attached hereto, there has been no change by the
Stock Company Entities in any method of accounting or keeping of its books of
account or accounting practices for the three-year period ended on December
31, 1996.
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2.15 ABSENCE OF CHANGES OR EVENTS; NO UNDISCLOSED LIABILITIES.
(a) Since December 31, 1996 (i) the Stock Company Entities
have conducted their respective businesses only in the ordinary course and,
except as described in SCHEDULE 2.15A, consistent with the requirements of
Section 4.1 below, (ii) the Stock Company Entities have not suffered any
change, event or condition that has had or may have a Material Adverse Effect
and (iii) the Stock Company Entities have not acquired or disposed of any
material assets or engaged in any material transaction other than in the
ordinary course of business or as expressly contemplated by the terms of this
Agreement.
(b) Except as set forth on SCHEDULE 2.15B, the Stock Company
Entities as of the date hereof do not have any material liability or
obligation of any nature, whether fixed or contingent or otherwise, whether
due or to become due, including, without limitation, any unfunded obligation
under any pension plan, any liability for Taxes, as defined below, or any
environmental liabilities, that is not reflected or reserved against in the
Financial Statements or otherwise disclosed in the notes thereto, other than
liabilities and obligations incurred subsequent to the date of the Financial
Statements in the ordinary course of business consistent with past practice
and not in violation of this Agreement. Furthermore, except as set forth in
SCHEDULE 2.15B, as of the date hereof, the Stock Company Entities do not know
and have no reason to know of any basis for the assertion against the Stock
Company Entities of any such liability or obligation not fully reflected in
the Financial Statements or otherwise disclosed in the notes thereto. There
are no agreements or arrangements pursuant to which any Stock Company Entity
has incurred Indebtedness, as defined below, or is liable for payments to the
Sellers or former shareholders of the Stock Company Entities or their
respective Affiliates or Associates other than those set forth in SCHEDULE
2.15B.
(c)(i) For purposes of this Agreement, "Indebtedness" shall
mean any indebtedness of any Stock Company Entity (as the context so
requires) for borrowed money as of the Closing Date.
(ii) For purposes of this Agreement, "Taxes" shall mean
all taxes, charges, fees, levies or other assessments, including, without
limitation, income, value added, gross receipts, excise, assets, net worth,
gaming, liquor, property, sales, withholding, transfer pricing, social
security, occupation, use, service, service use, license, payroll, franchise,
transfer and recording taxes, fees and charges, including estimated taxes,
imposed by the Czech Republic or any taxing authority (domestic or foreign),
whether computed on a separate, consolidated, unitary, combined or any other
basis; and such term shall include any interest, fines, penalties or
additional amounts attributable to, or imposed upon, or with respect to any
such taxes, charges, fees, levies or other assessments and shall be adjusted
for any rebate or refund received by TWG or its subsidiaries (which were
formerly Stock Company Entities) after Closing for any period before Closing.
Stock Purchase Agreement
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2.16 REAL PROPERTY.
(a) SCHEDULE 2.16A sets forth the location and a description
of the Owned Property (as defined below) and the general nature of the
facilities located on the Owned Property. For purposes of this Agreement,
"Owned Property" shall mean all freehold real property owned with full title
guarantee by any Stock Company Entity and each lesser interest (other than a
leasehold interest) owned by any Stock Company Entity in any real property.
(b) SCHEDULE 2.16B sets forth the location of, and a
description of the general nature of the buildings located on, each parcel of
real property and each interest in real property leased by any Stock Company
Entity (such real property, the "Leased Property," and together with the
Owned Property, the "Property"). Except as set forth in SCHEDULE 2.16B, all
of the buildings on the Property are in good condition, ordinary wear and
tear excepted, and all electrical, plumbing and mechanical aspects of the
Property are in good working order.
(c) There are now in full force and effect duly issued
certificates of occupancy, where required, permitting the Property and the
improvements located thereon to be legally used and occupied as the same are
proposed to be or now constituted. Except as set forth in SCHEDULE 2.16C,
each of the Properties is used exclusively for the business of the applicable
Stock Company Entity owning or leasing such Property. The Property does not
violate any material provisions of any applicable Environmental Laws or any
trade, gambling, liquor, criminal, building code, fire, health or safety
regulations, or other governmental ordinances, orders or regulations, and the
applicable Stock Company Entity owning or leasing each Property is in
material compliance with all applicable laws, ordinances, regulations,
statutes, rules and restrictions relating to the applicable Property or any
part thereof.
(d) For purposes of this Agreement,
(i) "Environmental Laws" means all laws and regulations
of the Czech Republic relating to pollution or protection of human health or
the environment (including, without limitation, ambient air, surface water,
groundwater, wetlands, land surface or subsurface strata), navigable waters,
ocean waters and international waters, including, without limitation, laws
and regulations relating to emissions, discharges, releases or threatened
discharge or releases of Materials of Environmental Concern or the dredging,
handling and disposal of river sediments, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern;
(ii) "Materials of Environmental Concern" means
chemicals, pollutants, contaminants, wastes, toxic substances, petroleum and
petroleum products, including, without limitation, oil, and any material or
substance that is designated by law, regulation, ordinance, treaty or by any
Person or court having jurisdiction over the Stock Company Entities as a
hazardous material, contaminant, pollutant or hazardous substance.
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2.17 LEASES.
(a) All leases of Property leased or subleased by or for the use or
benefit of any Stock Company Entity and all leases as to which any Stock Company
Entity is the lessee or sublessee, and all amendments and modifications thereof,
are listed on SCHEDULE 2.17A (true, correct and complete copies of which have
been delivered to the Buyer). All such leases are valid, binding and in full
force and effect and are enforceable by the applicable Stock Company Entity in
accordance with their terms and have not been modified or amended, except as set
forth in SCHEDULE 2.17A; each applicable Stock Company Entity has performed all
material obligations required to be performed by it to date under each such
lease, and there has been no material breach or default under any such leases by
any Stock Company Entity, or, any other party thereto, nor any such breach or
default by any Stock Company Entity, or any other party thereto which with
notice or lapse of time or both would constitute an event of default thereunder.
(b) All leases of Property leased or subleased by or for the use or
benefit of third parties to which any Stock Company Entity is a party, and any
and all amendments thereto and modifications thereof, are listed on SCHEDULE
2.17B (true, correct and complete copies of which have been delivered to the
Buyer) all such leases are valid, binding and in full force and effect and are
enforceable by the applicable Stock Company Entity in accordance with their
terms and have not been modified or amended, except as set forth in SCHEDULE
2.17B; no such lease, nor any other agreement relating to the Property, contains
any option or right (conditional or otherwise) to extend the term thereof or to
purchase all or any part of the Property or any rights therein; each applicable
Stock Company Entity has performed all material obligations required to be
performed by it to date under each such lease; and there has been no material
breach or default (or event which with notice or lapse of time or both would
constitute an event of default) under any such lease by any Stock Company
Entity, or any other party thereto.
2.18 TITLE TO ASSETS. Except as disclosed in SCHEDULE 2.18, the
Company Entities have good and marketable title (full title guarantee, in the
case of freehold Owned Property) to, and are the legal, beneficial and
registered owners of all of their respective assets and the Assets, including
the Owned Property, and such ownership is free and clear of any and all
Liens, easements and rights of way, other than Permitted Liens, defined
below. After the Closing, the Buyer will own and be the legal, beneficial
and registered owner, or have the right to use under a valid lease, all of
the assets of the Stock Company Entities and the Assets, free and clear of
any Liens (other than Permitted Liens). "Permitted Liens" means (i) liens
shown on the balance sheet in the Financial Statements as securing specified
liabilities (with respect to which no default exists), (ii) liens for current
taxes not yet due, and (iii) minor imperfections of title and encumbrances,
if any, which are not substantial in amount, do not detract from the value of
the property subject thereto or impair the operations of the Company
Entities, have arisen only in the ordinary course of business and consistent
with past practice and do not preclude or materially adversely affect the
continued use of the property to which they relate as used in the operation
of the business of the Company Entities as currently
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conducted.
2.19 TANGIBLE PERSONAL PROPERTY. SCHEDULE 2.19A lists each item
of tangible personal property (other than inventory) owned by the Company
Entities having an initial purchase price in excess of U.S.$10,000. SCHEDULE
2.19B lists each item of tangible personal property leased by the Company
Entities (other than pursuant to individual leases having an annual rental of
less than U.S.$10,000 or which are terminable by the applicable Company
Entity within 90 days of the date hereof without penalty) and each item of
personal property having a value of U.S. $10,000 or more used by a Company
Entity and owned or leased by Persons providing services to a Company Entity;
and SCHEDULE 2.19C lists each live gaming device or electronic gaming device
(including all gaming tables and slot machines) owned, leased or otherwise
used by a Company Entity (collectively, the "Tangible Personal Property").
The Tangible Personal Property, together with other tangible personal
property owned by the Company Entities or used by a Company Entity and owned
by Persons providing services to the Company Entities, constitutes
substantially all of the tangible personal property used in the operation of
the business of the Company Entities and constitutes substantially all
tangible personal property necessary to conduct the business of the Company
Entities as presently conducted by them. Except as set forth in SCHEDULE
2.19D, (i) the Tangible Personal Property owned by the Company Entities and
all other personal property, whether tangible or intangible, owned by the
Company Entities is free and clear of any and all Liens, and (ii) all the
Tangible Personal Property is located at the Property and there is no
material tangible personal property located at the Property which is not
owned or leased by the Company Entities. The Tangible Personal Property is
in all material respects in good working order, ordinary wear and tear
excepted. All the material Tangible Personal Property of the Company
Entities has been maintained in all material respects in accordance with the
past practice of the Company Entities and generally accepted industry
practice. All leased Tangible Personal Property of the Company Entities is in
all material respects in the condition required of such property by the terms
of the lease applicable thereto during the term of the lease and upon the
expiration thereof.
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2.20 INTELLECTUAL PROPERTY.
(a) SCHEDULE 2.20 contains a true, correct and complete list
of the Stock Company Entities' Intellectual Property, as defined below, and
all license agreements relating thereto to which a Stock Company Entity is a
party (either as licensor or licensee) (the "License Agreements").
(b) Xx. Xxxxxx and the Stock Company Entities, as
applicable, are the sole and exclusive owners of the Intellectual Property
and their rights under the License Agreements, and the Intellectual Property
and all registrations and applications for registration therefor currently
are standing in the name of Xx. Xxxxxx and the Stock Company Entities, as
applicable, as set forth in SCHEDULE 2.20. The Intellectual Property,
License Agreements and Business Know-How, as defined below, are free and
clear of all Liens, and the Intellectual Property and Business Know-How are
free of all licenses to third parties except those set forth in SCHEDULE
2.20. None of the Stock Company Entities owns or is a party to any License
Agreement with respect to any patent or application therefor. The
Intellectual Property is valid and enforceable, all registrations were
validly obtained, and no registration has lapsed, expired or been abandoned,
or is subject to any pending or threatened opposition or cancellation
proceeding before the Czech Intellectual Property Rights Authority, the
United States Patent and Trademark Office, or any other registration
authority, except where such invalidity, unenforceability, lapse, expiration,
abandonment or proceeding could not, individually or in the aggregate,
reasonably be expected to have a material effect on the use by the Stock
Company Entities of such Intellectual Property. The Sellers do not know of a
reason why any of the Stock Company Entities' trademarks or service marks
(other than common law trademarks or service marks) would not be registrable
in the Czech Republic or transferable to the Buyer pursuant to this
Agreement. Except as set forth in SCHEDULE 2.20, there are no claims pending
or threatened and the Stock Company Entities have not received notice of any
claims alleging that the Stock Company Entities' activities infringe upon or
constitute the unauthorized use of the proprietary rights of any third party,
or challenging the Stock Company Entities' ownership or the validity or
enforceability of the Intellectual Property, the Business Know-How or the
License Agreements. Except as set forth in SCHEDULE 2.20, there are no
infringements of the Intellectual Property or the License Agreements by third
parties. Except as set forth in SCHEDULE 2.20, none of the Stock Company
Entities has entered into any consent, indemnification, forbearance to xxx,
or settlement agreement with any third party relating to the Stock Company
Entities' Intellectual Property, Business Know-How or License Agreements, or
the intellectual property or business know-how of any third party.
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(c) For purposes of this Agreement:
(i) "Intellectual Property" means all registered and
unregistered: trademarks, service marks, trade names, corporate names,
company names, fictitious business names, trade styles, trade dress, logos,
and other source or business identifiers (the "Trademarks"); patents;
copyrights; proprietary formulas, recipes, technology, know-how and other
trade secrets (the "Trade Secrets") used in or necessary to conduct the Stock
Company Entities' business as currently conducted, and all registrations and
recordings thereof, all applications for registration pending therefor, all
extensions and renewals thereof, all goodwill associated therewith, and all
proprietary rights therein, in any jurisdiction in which any of the Stock
Company Entities operates or does business.
(ii) "Business Know-How" means all books, records,
technology, formulas, know-how recorded on paper or other media in the books
and records of the Stock Company Entities, quality control records, finished
product specifications, packaging supplies specifications, product
registrations, records relating to the adoption and use of the Intellectual
Property (as defined above), marketing plans, sales records and histories,
market research data, promotional advertising and marketing materials, radio,
television and Internet commercials, print advertisements, customer lists,
label and shipping carton dies, designs, films, earthwork, photography,
mechanical art, color separations, prints, plates, and graphic materials,
permits and licenses, and inventory records, used in or necessary to conduct
the Stock Company Entities' businesses as currently conducted.
2.21 LITIGATION.
(a) Except as set forth in SCHEDULE 2.21A, there are no
claims, actions, suits, proceedings or investigations pending or threatened
by any Stock Company Entity at law or in equity or before or by any federal,
state, municipal or other governmental court, department, commission, board,
agency, instrumentality or authority or before any arbitration body.
(b) Except as set forth in SCHEDULE 2.21B, there are no
claims, actions, suits, proceedings or investigations pending or threatened
against or adversely affecting any Company Entity or Seller at law or in
equity or before or by any federal, state, municipal or other governmental
court, department, commission, board, agency, instrumentality or authority or
arbitration body that, as of the date of this Agreement, (i) involve a claim
against any Seller or Company Entity of more than U.S.$50,000, (ii) seek any
injunctive relief or punitive damages not covered by insurance against any
Company Entity, or (iii) individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, and the Sellers as of the date
hereof do not know or have any reason to know of any basis for any such
claim, action, suit, proceeding or investigation. As of the Closing Date,
there will be no pending or threatened claims, actions, suits, proceedings or
investigations of the kind described in clause (iii) above, or that challenge
the legality or validity of the transactions contemplated hereby or seek
damages in excess of
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U.S.$50,000 in connection with the consummation of the transactions
contemplated hereby. Except as set forth in SCHEDULE 2.21B, none of the
Company Entities is a party to or subject to or in default under any material
judgment, order, injunction or decree of any court, governmental entity or
arbitration tribunal applicable to it or any of its respective properties,
assets, operations or business.
2.22 INSURANCE.
(a) SCHEDULE 2.22A sets forth a complete and accurate list
and description, including but not limited to annual premiums thereon,
expiration dates thereof and the deductibles thereunder, of all policies of
fire, liability, business interruption, protection and indemnity, pollution,
product liability, workers' compensation, health and other forms of insurance
presently in effect with respect to the Stock Company Entities, true copies
of which have heretofore been delivered to the Buyer.
(b) Except as set forth in SCHEDULE 2.22B, all such policies
are valid, outstanding and enforceable policies and provide insurance
coverage for the properties, assets and operations of the Stock Company
Entities and of the kinds, in the amounts reasonably sufficient to protect
against the risks insured. None of the Stock Company Entities has been
refused any insurance with respect to any aspect of the operations of the
Stock Company Entities, nor has the coverage been limited by any insurance
carrier to which it has applied for insurance or with which it has insurance
during the last three years. All premia respecting each such policy of
insurance have been paid through the end of each respective policy year. No
insurance or proceeds thereof have been assigned by any applicable Stock
Company Entity to any Person.
2.23 LABOR MATTERS. Except to the extent set forth in SCHEDULE
2.23, (i) each Stock Company Entity is, and has at all times been, in
material compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment, wages, hours of
work and occupational safety and health, and is not engaged in any unfair
labor practices under any applicable law, ordinance or regulation in the
Czech Republic; (ii) there is no labor strike, dispute, slowdown, stoppage or
lockout actually pending, or threatened against or affecting any of the Stock
Company Entities, and during the past three years there has not been any such
action; (iii) no union claims to represent the employees of any of the Stock
Company Entities; (iv) none of the Stock Company Entities is a party to or
bound by any collective bargaining or similar agreement with any labor
organization, or work rules or practices agreed to with any labor
organization or employee association applicable to employees of the Company
Entities; (v) none of the employees of the Stock Company Entities is
represented by any labor organization and there is no current union
organizing activities among the employees of the Company Entities, nor does
any question concerning representation exist concerning such employees; (vi)
there are no written personnel policies, rules or procedures applicable to
employees of the Stock Company Entities; (vii) the Stock Company Entities
have not received notice of any unfair labor practice charge or complaint
against any of the Company Entities pending or threatened before the Courts
of the Czech Republic or any similar state or foreign agency; (viii) the
Stock Company Entities have not received notice of any
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grievance arising out of any collective bargaining agreement or other
grievance procedure against the Stock Company Entities; (ix) the Stock
Company Entities have not received notice of any charges with respect to or
relating to any of the Stock Company Entities pending before the Courts of
the Czech Republic or any other agency responsible for the prevention of
unlawful mployment practices; (x) the Stock Company Entities have not
received notice of the intent of any federal, state, local or foreign agency
responsible for the enforcement of labor or employment laws to conduct an
investigation; (xi) the Stock Company Entities have not received notice of
any complaints, lawsuits or other proceedings pending or threatened in any
forum by or on behalf of any present or former employee of the Stock Company
Entities, any applicant for employment or classes of the foregoing alleging
breach of any express or implied contract of employment, any law or
regulation governing employment or the termination thereof or other
discriminatory, wrongful or tortious conduct in connection with the
employment relationship; and (xii) there are no employment contracts or
severance agreements with any employees of any of the Stock Company Entities
that, by their terms, could result in any liability to the Stock Company
Entities.
2.24 EMPLOYEE BENEFIT PLANS.
(a) SCHEDULE 2.24 contains a true and complete list of each
bonus, deferred compensation, incentive compensation, profit sharing
arrangement, stock purchase, stock option, severance or termination pay,
food, housing, hospitalization or other medical, life or other insurance,
supplemental unemployment benefits, profit-sharing, pension or retirement
plan, program, agreement or arrangement, and each other employee benefit plan
program, agreement or management, whether formal or informal, written or
oral, that is maintained or contributed to or was maintained or contributed
to at any time by any Stock Company Entity within the last three years, for
the benefit of any employee, former employee, consultant, officer, director
or Affiliate of any Stock Company Entity (a "Plan").
(b) With respect to each Plan, the Company Entities heretofore
have delivered to the Buyer true and complete copies of each of the following
documents to the extent applicable:
(i) a copy of the Plan (including all amendments
thereto);
(ii) a copy of the most recent annual report with respect
to each such Plan for the last two most recently completed Plan years;
(iii) a copy of the most recent "Summary Plan
Description," together with each "Summary of Material Modifications;"
(iv) if the Plan is funded through a trust or any
third-party funding vehicle, a copy of the trust or other funding agreement
(including all amendments thereto) and the latest financial statements
thereto; and
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(v) all Contracts relating to any Plan with respect to
which any Stock Company Entity may have any liability, including, without
limitation, insurance contracts, investment management agreements,
subscription or participation agreements and record keeping or other
servicing or administration agreements.
All reports, returns and similar documents with respect to the
Plans required to be filed with any governmental agency or distributed to any
Plan participant or beneficiary have been duly and timely filed or
distributed and, to the knowledge of the Sellers and Resorts, all reports,
returns and similar documents actually filed or distributed were true,
complete and correct in all material respects.
(c) All contributions to, and payments from, the Plans
required to be made by any Stock Company Entity in accordance with the terms
of the Plans have been timely made as of the last day of the most recent Plan
year thereof ended prior to the date of this Agreement. All required
contributions to, and payments from, the Plans for any period on or before
December 31, 1996 that were not required to be made as of such date were
properly accrued and reflected on the balance sheet for the year ended
December 31, 1996 in the Financial Statements.
(d) No Plan provides benefits, including, without limitation,
death or medical benefits (whether or not insured), with respect to current
or former employees of any Stock Company Entity for periods extending beyond
their retirement or other termination of service (other than (i) coverage
mandated by applicable law or (ii) benefits the full cost of which is borne
by the current or former employee (or his beneficiary)).
(e) There are no pending, threatened or anticipated claims
(other than routine claims for benefits) by, on behalf of or against any of
the Plans, or any trusts related thereto or any trustee or administrator
thereof, and no litigation or administrative or other proceeding has occurred
or is threatened involving any Plan or any trusts related thereto or any
trustee or administrator thereof.
(f) The consummation of the transactions contemplated by this
Agreement will not (i) entitle any current or former employee or officer of
any Stock Company Entity to severance pay, unemployment compensation or any
other similar payment, or (ii) accelerate the time of payment or vesting or
increase the amount of compensation due any such employee or officer.
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2.25 ENVIRONMENTAL MATTERS.
(a) Except as set forth in SCHEDULE 2.25A, each of the Stock
Company Entities is in compliance in all material respects with all
applicable Environmental Laws, which compliance includes, but is not limited
to, the possession by the Stock Company Entities of, and their compliance in
all material respects with terms and conditions of, all permits, certificates
of financial responsibility and other governmental authorizations required
under applicable Environmental Laws ("Environmental Permits"). Except as set
forth in SCHEDULE 2.25A, no Stock Company Entity has received any formal
communication (written or oral) that alleges that any Stock Company Entity is
not in such material compliance, and except as identified elsewhere in this
Section 2.25A, there are no circumstances or conditions that under existing
Environmental Law could reasonably be expected to prevent or interfere with
such material compliance in the future. All permits, certificates of
financial responsibility and other governmental authorizations currently held
by any Stock Company Entity pursuant to Environmental Laws are identified in
SCHEDULE 2.25A.
(b) Except as set forth in SCHEDULE 2.25B there is no
Environmental Claim, as defined herein, pending or threatened against any
Stock Company Entity or against any person or entity whose liability for any
Environmental Claim any Stock Company Entity has contractually retained or
assumed. For purposes of this Agreement, an "Environmental Claim" means any
claim, action, cause of action, investigation or notice (written or oral) by
any person or entity alleging potential liability (including, without
limitation, potential liability for investigatory costs, cleanup and removal
costs, governmental enforcement and response costs, natural resources
damages, property damages, economic loss, personal injuries, or penalties)
arising out of, based on or resulting from (i) the presence, discharge or
release or threatened discharge or release into the environment, of any
Material of Environmental Concern at any location, whether or not owned or
operated by any Company Entity or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
(c) Except as set forth in SCHEDULE 2.25B, there are no past
or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the presence, release, emission,
discharge or disposal by any Person of any Material of Environmental Concern
at or under any facility currently or formerly owned or operated by any Stock
Company Entity, that could reasonably be expected to form the basis of any
Environmental Claim against any Stock Company Entity or against any Person or
entity whose liability for any Environmental Claim any Stock Company Entity
has contractually retained or assumed.
(d) Without in any way limiting the generality of the
foregoing, (i) all on-site and off-site locations where any Stock Company
Entity has stored, disposed or arranged for the disposal of Materials of
Environmental Concern are identified in SCHEDULE 2.25C; (ii) all underground
storage tanks, and the capacity and contents of such tanks, located on
property owned or leased by any Stock Company Entity are identified in
SCHEDULE 2.25C; (iii) except as set forth in SCHEDULE 2.25C, there is no
asbestos contained in or forming part of any building, building component,
vessel,
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structure or office space owned or leased by any Stock Company Entity; and
(iv) except as set forth in SCHEDULE 2.25C, no polychlorinated biphenyls
(PCBs) are used or stored at any property owned or leased by any Stock
Company Entity in violation of any Environmental Law.
2.26 NO CONDEMNATION OR EXPROPRIATION. Neither the whole nor any
portion of the Property or any other assets of any Company Entity is subject
to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any public authority, with or without
payment of compensation therefor, nor has any such condemnation,
expropriation or taking been proposed or threatened (orally or in writing).
2.27 SUPPLIERS. SCHEDULE 2.27 contains a true and complete list
of the names and addresses of the twenty-five largest suppliers (indicating
U.S. dollar volume for each) of products and services to the Stock Company
Entities during the ten months ended October 31, 1997, indicating the
existing contractual arrangements for continued supply from each such firm.
The Stock Company Entities have not received any notice of, and know of no
reasonable basis for, any development that threatens to affect adversely its
arrangements with their respective suppliers that could reasonably be
expected to have a Material Adverse Effect. Except as set forth in SCHEDULE
2.27, there are no supply arrangements between any applicable Company Entity
and the Sellers or Affiliates of the Sellers that are on terms more or less
favorable to such Company Entity than could be obtained by such Company
Entity in transactions with unaffiliated third parties.
2.28 CONTRACTS AND COMMITMENTS. Except as set forth on SCHEDULE
2.28 or expressly referred to in the notes to the Financial Statements:
(a) None of the Stock Company Entities is party to or bound
by any Contract that is material to its business, operations, financial
condition or prospects or that involves, or is reasonably likely to involve,
the expenditure or receipt by such Company Entity after the date of the
balance sheet for the year ended December 31, 1996 in the Financial
Statements of more than U.S.$50,000. The legal enforceability after the
Closing by the Stock Company Entities of their respective Contracts will not
be affected in any material respect by the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(b) No purchase commitment of any of the Stock Company
Entities, or by which any of the Company Entities is bound, is materially in
excess of the normal, ordinary and usual requirements of the business or, in
the opinion of the Sellers, is at an excessive price.
(c) None of the Stock Company Entities is a party to or
bound by (i) any Contract (other than this Agreement) with the Sellers or
former shareholders of any Company Entity, or any Person known to any Company
Entity to be an Affiliate or Associate of a Seller or former shareholder of
any Company Entity, (ii) any Contract with officers, employees, agents,
consultants, advisors, salesman, sales representatives, distributors or
dealers that is not cancelable by the applicable Company Entity at will
without liability, penalty or premium, (iii) any Contract
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providing for the payment of any bonus or commission based on sales or
earnings, (iv) any Contract that contains any severance or termination or
change in control pay liability or obligation, (v) any Contract for the
purchase or sale of any security (other than this Agreement), (vi) any
Contract for the borrowing of money (or guarantee of indebtedness), (vii) any
Contract for leasing personal property that requires annual payments in
excess of U.S.$50,000 or the term of any of which exceeds one year,
(viii) any Contract relating to express product or service warranties,
(ix) any Contract containing a covenant not to compete by a Company Entity,
(x) any Contract granting a Lien, security interest or other material
encumbrance on any property or assets of any Stock Company Entity or on the
Assets, (xi) any Contract providing for exclusive purchases by or from a
Company Entity or containing a requirement purchase obligation, (xii) any
Contract providing for administration, service, utilization review,
adjustment, claims management or similar functions relating to insurance,
litigation or Plans of any of the Stock Company Entities or (xiii) any
Contract for the sale of any of the assets, property or rights of a Stock
Company Entity outside of the ordinary course of business, except as
contemplated by this Agreement.
(d) No Stock Company Entity has given any power of attorney
(whether revocable or irrevocable) to any Person that is or may hereafter be
in force for any purpose whatsoever.
(e) No Stock Company Entity is paying, or has any obligation
to pay, any pension, deferred compensation or retirement allowance to any
Person.
(f) Each material Contract of a Stock Company Entity is
valid and binding upon such Company Entity and each other party thereto and
is in full force and effect and enforceable by the applicable Company Entity
in accordance with its terms. Each applicable Company Entity has performed
all obligations required to be performed by it to date under each Contract to
which such Company Entity is a party, and there has been no breach or default
or claim of default by such a Company Entity or by any other party thereto
under any provision thereof and no event has occurred that, with or without
notice, the passage of time or both, would constitute a default by any Stock
Company Entity or any other party thereto under any provision thereof or that
would permit modification, acceleration or termination of any Contract by any
other party thereto or by a Stock Company Entity, except for such defaults
which in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
True, complete and correct copies of each of the Contracts set
forth in SCHEDULE 2.28 or expressly referred to in the notes to the Financial
Statements have heretofore been provided to the Buyer by the Stock Company
Entities.
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2.29 COMPLIANCE WITH APPLICABLE LAW.
(a) Except as set forth in SCHEDULE 2.29A, (i) each of the
Stock Company Entities in the past has complied and presently is complying
with all laws applicable to them and their business (whether statutory or
otherwise), rules, regulations, orders, ordinances, judgements or decrees of
all governmental authorities (collectively, "Laws"), including, but not
limited to, all Czech Gaming Laws (as defined below), all Laws relating to
the safe conduct of business and environmental protection and conservation,
and any applicable liquor, smoking, prostitution, health, sanitation, fire,
safety, labor, zoning and building laws and ordinances, as well as all
criminal laws, except for such failures to comply, that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (ii) none of the Stock Company Entities has received notification of
any asserted present or past failure to so comply, and (iii) each of the
Stock Company Entities is in compliance in all material respects with all
applicable Laws governing or relating to the current or contemplated casino
and gaming activities and operations of the Stock Company Entities, including
the Act of the Czech National Council of 17 May 1990 on Lotteries and Similar
Games, No. 202/1990 Coll., as amended by the Act of the Czech National
Council No. 70/1994 Coll. of 22 March 1994 and the Decree of the Ministry of
Finance No. 223/1993 Coll. of 28 July 1993 on Gambling Machines (the "Czech
Gaming Laws").
(b) Except as set forth in SCHEDULE 2.29B, each of the Stock
Company Entities has in effect all governmental approvals, authorizations,
certifications, filings, franchises, licenses, notices, permits,
registrations, variances and rights, including all authorizations under
Environmental Laws and Czech Gaming Laws ("Permits"), necessary for it to
own, lease or operate its properties and assets and to carry on its business
as now conducted other than such Permits the absence of which could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and there has occurred no default under any such Permit other
than such defaults that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(c) Since January 1, 1994 and except as disclosed in
SCHEDULE 2.29C, none of the Company Entities nor any of their Affiliates has
(i) ever applied for a casino, racing, or other gaming license in the Czech
Republic and been denied, (ii) experienced any revocation or failure to renew
any such license, or (iii) not applied for any such license or renewal after
being informed orally or in writing by any regulatory authority in the Czech
Republic, or any representative of such regulatory authority, that the
Company Entity or such Affiliate of the Company Entity, as the case may be,
would be denied such a license or renewal if it were applied for.
(d) The Stock Company Entities have delivered or given the
Buyer access to (i) copies of all material correspondence in its possession
or under its control between any Stock Company Entity and any of the
following: the Ministry of Finance of the Czech Republic, the Czech National
Bank and any municipal authority of the Czech Republic and other applicable
governmental authorities relating to the compliance by the applicable Company
Entity with the rules and
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regulations of the Ministry of Finance, the Czech National Bank and any
municipal authority of the Czech Republic and the terms of the License, and
(ii) a true and complete copy of the original application(s) for licenses to
operate gambling casinos, slot machines, currency exchanges, public bar
(saloon) keeping, purchasing and selling of goods and/or services and/or real
estate, removal and utilization of fertile soil and other applicable licenses
(the "Licenses" or, any one of them, a "License") filed with the Ministry of
Finance of the Czech Republic, the Czech National Bank and any municipal
authority and other applicable governmental authorities and any and all
amendments and updates made thereto. Except as disclosed in such
correspondence and such applications or as set forth in SCHEDULE 2.29D, the
Sellers are not aware of any facts or circumstance relating to the conduct of
any Company Entity, or any director, officer, employee or Seller of any Stock
Company Entity that could cause the Czech Republic Ministry of Finance, the
Czech National Bank and any municipal authority and other applicable
governmental authorities to revoke, suspend or fail to renew the License or
take disciplinary action against any of the Stock Company Entities or any
director, supervisory board member, officer, employee, agent, shareholder or
equityholder thereof in respect of such conduct.
2.30 BANK ACCOUNTS. SCHEDULE 2.30 sets forth the names and
locations of all banks or other financial institutions in which any Stock
Company Entity has an account or safe deposit box and the names of all
Persons authorized to draw thereon or to have access thereto. At the
Closing, the Stock Company Entities will deliver to the Buyer copies of all
records, including all signature or authorization cards pertaining to such
bank accounts and safe deposit boxes and will assign such authorization to
the Buyer and confirm in writing to the Buyer that such assignment will be
effective as soon as practically possible subsequent to the Closing and, at
such time, no Seller or Person determined by the Buyer to be unauthorized
shall have the authority to access such accounts or safe deposit boxes or
draw on such accounts.
2.31 ASSETS NECESSARY TO BUSINESS. The Stock Company Entities and
the Asset Sellers presently have and immediately prior to the Closing will
have good, valid and marketable title to all property and assets, real,
personal and mixed, tangible and intangible, and all leases, licenses and
other agreements, necessary to permit the Stock Company Entities to carry on
the respective businesses of the Stock Company Entities as presently
conducted immediately subsequent to the Closing Date, and the Asset Sellers
to transfer the Assets to TWG, free and clear of all Liens, and there is no
reason known to the Sellers why such titles, leases and other agreements will
not transfer to the Buyer upon the Closing and upon the Closing, the Buyer
shall obtain good, valid and marketable title to such property, assets and
leases and other agreements, free and clear of any Lien.
2.32 COMMISSIONS. Except as set forth on SCHEDULE 2.32 there are
no claims for brokerage commissions or finder's fees incurred by reason of
any action taken by any of the Stock Company Entities or the Sellers.
2.33 DISCLOSURE OF ALL MATERIAL FACTS. The Sellers and Stock
Company Entities have disclosed to the Buyer in writing in or pursuant to
this Agreement all facts material to a Person
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considering a purchase of the Shares and the Assets. No representation or
warranty to the Buyer contained herein, and no statement contained in any
certificate, schedule, list or other writing furnished to the Buyer pursuant
to the provisions of this Agreement contains any untrue statement of a
material fact or omits to state a material fact that is necessary in order to
make the information given by or on behalf of the Sellers and the Stock
Company Entities to the Buyer or its representatives prior to the Closing not
misleading and that if disclosed would reasonably affect the decision of a
Person considering a purchase of the Shares and the Assets.
ARTICLE III
REPRESENTATION AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Sellers that:
3.1 ORGANIZATION. The Buyer is a corporation duly organized
validly existing and in good standing under the laws of the State of Nevada,
United States of America.
3.2 AUTHORITY. The Buyer has the corporate power and authority
to execute, deliver and perform this Agreement and the other instruments and
documents required or contemplated hereby. The Buyer will deliver to the
Sellers prior to the Closing a complete and correct copy, certified by its
Secretary, of the resolutions heretofore duly and validly adopted by its
Board of Directors evidencing such authorization (which resolutions will not
have been rescinded prior to and will be in full force and effect on the date
of the Closing). No other corporate act or proceeding on the part of the
Buyer or its shareholders is necessary to authorize this Agreement or the
other documents and instruments to be executed and delivered by the Buyer
pursuant hereto or the transactions contemplated hereby or thereby.
3.3 BINDING EFFECT; NO VIOLATION; CONSENTS. This Agreement
constitutes, and, when executed and delivered, the other documents and
instruments to be executed and delivered by the Buyer pursuant hereto will
constitute, valid and binding agreements of the Buyer, enforceable in
accordance with their respective terms, and (assuming receipt of the
consents, approvals and authorizations specifically contemplated by the next
sentence) neither the execution and delivery of this Agreement or the other
documents and instruments to be executed and delivered by the Buyer pursuant
hereto, nor the consummation by the Buyer of the transactions contemplated
hereby or thereby will (i) violate or conflict with or result in any breach
of any provision of the Articles of Incorporation or Bylaws of the Buyer,
(ii) violate or conflict with or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under or
will result in the termination of, or accelerate the performance required by,
or (except with respect to the financing of the acquisition contemplated by
the Buyer) result in the creation of any Lien upon any of the assets under,
any Contract to which the Buyer is a party or by which its assets or
properties may be bound or affected, or (iii) violate any statute or law or
any rule, regulation, order, writ, injunction or decree
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of any court or governmental authority, excluding from the foregoing clauses,
(ii) and (iii) such defaults, rights and violations that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect on the
ability of the Buyer to perform its obligations under this Agreement or to
consummate the transactions contemplated hereby. No consent, approval,
authorization or action by, notice to or filings with, any governmental
authority or any other Person is required in connection with the execution of
this Agreement, the other documents and instruments to be executed and
delivered by the Buyer pursuant hereto or the consummation by the Buyer of
the transactions contemplated hereby o thereby, except where the failure to
obtain such consent, give such notice or make such filing could not
reasonably be expected to have a Material Adverse Effect on the ability of
the Buyer to perform its obligations under this Agreement or to consummate
the transactions contemplated hereby.
3.4 LITIGATION. There are no claims, actions, suits, proceedings
or investigations pending or threatened by or against the Buyer, at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, board, agency, instrumentality or authority, other
than claims, actions, suits proceedings or investigations pending or
threatened, which individually or in the aggregate could not reasonably be
expected to have a material adverse effect on the ability of the Buyer to
perform its obligations under this Agreement or to consummate the
transactions contemplated hereby, and the Buyer does not know or have any
reason to know of any basis for any such claim, action, suit, proceeding or
investigation.
3.5 COMMISSIONS. Except as set forth on SCHEDULE 3.5, there are
no claims for brokerage commissions or finder's fees incurred by reason of
any action taken by the Buyer.
ARTICLE IV
COVENANTS OF THE SELLERS AND THE COMPANY ENTITIES
Each of the Sellers, solely for itself (on a several, and not joint
and several basis) covenants and agrees with the Buyer that, from the date
hereof until the Closing, the Sellers will, and each of the Company Entities,
as applicable, covenants and agrees with the Buyer that, from the date hereof
until the Closing, it will do (or cause to be done) the following:
4.1 OPERATION OF THE BUSINESS. Each of the Stock Company
Entities will (i) conduct its respective business diligently, only in the
ordinary course and substantially in the same manner as heretofore conducted;
and no Stock Company Entity may declare or pay any cash dividends prior to
the Closing that would result in Sellers' failure to comply with Section
1.4(p) hereof; and that the Company Entities may take such actions outside
the ordinary course of business as required by law or as expressly
contemplated or required by this Agreement; and (ii) obtain the Buyer's
consent to any business decision reasonably likely to have a significant
financial or operational effect on the Stock Company Entities and will
consult frequently (at least weekly) with the Buyer prior to the
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Closing regarding the operation and results of the Stock Company Entities and
the progress of the construction of the casinos in Rozvadov and Chvalovice,
Czech Republic pursuant to Section 4.1(c) hereof. Without limiting the
foregoing, unless the Buyer otherwise consents in advance in writing:
(a) Provide prompt notice to the Buyer of (i) any breach or
default (or notice thereof) of any of their respective material Contracts by
any Stock Company Entity, or (ii) any other event that has resulted or may
result in a Material Adverse Effect by the Company Entities.
(b) The Stock Company Entities will not incur or guarantee
any obligation or liability (whether absolute, accrued, contingent or
otherwise and whether due or to become due) material to the Stock Company
Entities or enter into any Contract that (had such Contract been in existence
on the date hereof) would have been required to be set forth on SCHEDULE 2.28
or, except with the prior written consent of the Buyer, which will not be
unreasonably withheld or delayed, amend any of their respective Articles of
Incorporation, or other comparable organizational or governing document or
Bylaws, as applicable.
(c) The Stock Company Entities will (i) have the authority
to make the capital expenditures disclosed in the capital budget set forth on
SCHEDULE 4.1 pursuant to and in accordance with their existing commitments,
(ii) use commercially reasonable efforts to pursue the diligent construction
of the casinos in Rozvadov and Chvalovice, Czech Republic pursuant to the
plans set forth in EXHIBIT B as in effect on the date hereof and shall
provide TWG or its representatives the right to inspect the properties and
interview personnel involved in the construction process exclusively in the
presence of Xxxx X. Xxxxxx, who shall make reasonable accommodation to
accompany TWG or its representatives on the dates and times requested, and
(iii) not make other capital expenditures except (A) capital expenditures
relating to the construction of the casinos in Rozvadov and Chvalovice, Czech
Republic only in accordance with the plans set forth in EXHIBIT B, capital
expenditures which individually (including any series of related
expenditures) do not exceed U.S.$50,000 and in the aggregate do not exceed
U.S.$100,000, or (B) as required to meet an emergency (it being understood
and agreed that the Stock Company Entities promptly shall notify the Buyer of
any such emergency and the emergency expenditures and other actions to be
taken by the particular Company Entity in response thereto).
(d) Except with the prior written consent of the Buyer, the
Stock Company Entities will not pay, discharge or satisfy any Lien or
liability (whether absolute, accrued, contingent or otherwise and whether due
or to become due), other than liabilities shown on the balance sheet as of
December 31, 1996 in the Financial Statements and liabilities incurred after
the date thereof in the ordinary course of business in normal amounts, and no
such payment, discharge or satisfaction shall be effected other than in
accordance with the ordinary payment terms relating to the liability paid,
discharged or satisfied.
(e) Except with the prior written consent of the Buyer, the
Stock Company Entities will not permit or allow any of their respective
properties or assets, real, personal or mixed, tangible
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or intangible, to be mortgaged, pledged or subjected to any Lien, except for
any Permitted Liens.
(f) The Stock Company Entities will not cancel any debts or
claims except in the ordinary course of business and consistent with past
practice, or waive any rights of material value or, except for inventory sold
in the ordinary course of business or disposal of obsolete assets, or sell,
transfer or convey any of their respective properties of assets, real,
personal or mixed, tangible or intangible.
(g) Xx. Xxxxxx and the Stock Company Entities will not
dispose of or permit to lapse any Intellectual Property.
(h) The Stock Company Entities will not adopt, amend or
terminate any Plan and will not enter into any employment contract,
consulting agreement, or compensation arrangement of any kind whatsoever, or
change (including, without limitation, any change pursuant to any bonus,
pension, profit-sharing or other plan, commitment, policy or arrangement) the
compensation payable or to become payable to any of their respective
officers, directors, employees or agents except for such changes which are in
the ordinary course of business and are not material or are required by law.
(i) The Stock Company Entities will not make any pension,
retirement, profit-sharing, bonus or other employee welfare or benefit
payment or contribution, other than in the ordinary course of business and
consistent with past practice.
(j) The Stock Company Entities will not declare, pay or
make, or set aside for payment or making, any dividend or other distribution
in respect to their capital stock or other securities except in amounts that
will not preclude the Sellers' compliance with Section 1.4(p) hereof, or
directly or indirectly redeem, purchase or otherwise acquire any of the
capital stock or other securities of any Company Entity.
(k) The Stock Company Entities will not subdivide or in any
way reclassify any shares of their respective capital stock.
(l) The Stock Company Entities will not (i) issue, grant or
sell any shares of their respective capital stock or any equity interest or
security, or (ii) issue, grant or sell any security, option, warrant, call,
subscription or other right of any kind, fixed or contingent, that directly
or indirectly calls for the issuance, sale, pledge or other disposition of
any shares of their respective capital stock or any equity interest or
security.
(m) Except as may be required by the law or regulation of
the Czech Republic, the Stock Company Entities will not make any change in
any accounting principles, practices or methods, including their principles,
practices or methods relating to calculation of reserves for receivables.
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(n) Except with respect to the sale of the Schoolhouse,
title deed number 350, registered in the Cadastral area of Horni Folmava,
Czech Republic, the Stock Company Entities will not pay, loan, or advance any
amount to or in respect of, or sell, transfer or lease any property or assets
(real, personal or mixed, tangible or intangible) to, or enter into any
transaction with or for the benefit of, any Seller or any of their respective
officers or directors or any Affiliate or Associate of any of their
respective officers or directors or any Affiliate or Associate of any of the
Sellers.
(o) Except in the ordinary course of business or with the
prior written consent of the Buyer, the Stock Company Entities will not enter
into any lease of real property or material lease of personal property.
(p) The Stock Company Entities will not terminate or amend,
or fail to perform any of their obligations or cause any breach under, any
Contract set forth in SCHEDULE 2.28. The Stock Company Entities will
exercise their respective commercially reasonable efforts to renew each of
the Contracts set forth on SCHEDULE 2.28 that may be scheduled to terminate
prior to the Closing Date.
(q) Each of the Stock Company Entities will use commercially
reasonable efforts to preserve intact the existing relationships with its
suppliers, customers and employees and others with which it has business
relationships. The Stock Company Entities will permit the Buyer to contact
their suppliers and employees exclusively in the presence of Xxxx X. Xxxxxx
who shall make reasonable accommodation to accompany TWG or its
representatives on the dates and times requested.
(r) The Stock Company Entities will maintain the insurance
referred to in SCHEDULE 2.22A.
(s) Each of the Company Entities will duly comply in all
material respects with all Laws applicable to it and its properties,
operations, business and employees. The Stock Company Entities will maintain
at all times reserves for working capital, capital improvements, replacements
and/or contingencies to the extent, and in the amounts, required by all
applicable Czech Gaming Laws.
(t) The Stock Company Entities will not change any of their
policies or practices relating to the extension of credit to customers or the
collection from customers of receivables arising from gaming operations.
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4.2 ACCESS. (a) The Sellers, to the extent within their
control, and the Company Entities will permit the Buyer and its authorized
representatives at all reasonable times, and upon reasonable notice, to have
access to and to examine all premises, properties, files, books, documents,
records, financial information (including working papers and data in the
possession of the independent public accountants, internal audit reports, and
"management letters" from such accountants with respect to the systems of
internal control) and other information of the Company Entities (including
the right to make extracts therefrom or copies thereof), and will cooperate
with the Buyer in its investigation of the Company Entities. Each of the
Sellers and the Company Entities will permit representatives of the Buyer to
consult with him, or its personnel, as the case may be, concerning all
financial and operational matters relating to the Company Entities and will
be available, or, in the case of the Company Entities, make available its
personnel, to consult with such representatives on prior notice and in the
presence of Xxxx X. Xxxxxx, who shall make reasonable accommodation to
accompany TWG or its representatives on the dates and times requested. The
Company Entities will promptly furnish to the Buyer all existing surveys and
title and lien searches, examinations, insurance binders and commitments as
are available. The Sellers and the Company Entities will promptly furnish to
the Buyer such other documents relevant to the transaction contemplated
hereby as may reasonably be requested from time to time.
(b) Notwithstanding the Buyer's ability to continue to
perform due diligence during the term of this Agreement pursuant to Section
4.2(a), above, the Buyer will confirm to the Sellers in writing within
forty-five (45) days after the date of the last party to execute this
Agreement as to whether or not additional substantial documentation will be
required, and, if so, specifying the nature of the documentation required
(the "Buyer's Notice"). The Sellers' Representative shall, within ten (10)
days after the receipt of the Buyer's Notice by its own notice in writing
(the "Sellers' Notice") either (i) provide such documentation, but such
provision shall not abrogate the Sellers' responsibility to inform the Buyer
under Section 7.8 as to any material adverse change, or (ii) confirm that no
such documentation can be provided, or (iii) notify the Buyer that the
Sellers will not provide any further documentation. The Buyer shall, within
five (5) days after receipt of the Sellers' Notice inform the Sellers'
Representative in writing whether it accepts the Sellers' Notice. If the
Buyer fails to respond to the Sellers' Notice within such time period or
confirms acceptance within such time period, this Agreement shall continue in
full force and effect. If the Buyer informs the Sellers' Representative that
it does not accept the Sellers' Notice, this Agreement shall terminate
forthwith and shall be deemed to have terminated in accordance with Section
10.1(a) hereof.
4.3 EXISTENCE. The Sellers, to the extent within their control,
and the Company Entities will take such action as may be necessary to
maintain, preserve, renew and keep in full force and effect each such
entity's existence (corporate or otherwise), rights and franchises and will
not amend any such entity's Articles of Association or other comparable
organizational or governing documents, or Bylaws.
4.4 CONSENTS. The Sellers and the Company Entities shall, at
their own expense, obtain prior
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to the Closing all consents necessary to the consummation of the transactions
contemplated hereby, as set forth in SCHEDULE 2.13 and such other
non-governmental consents as the Buyer or its counsel shall reasonably
determine to be necessary and shall have specified in writing to the Sellers'
Representative no later than 30 days after the execution of this Agreement.
All such consents shall be in writing and executed counterparts thereof shall
be delivered to the Buyer promptly after receipt thereof by the Company
Entities or the Sellers but in no event later than immediately prior to the
Closing.
4.5 GOVERNMENTAL FILINGS. Each of the Company Entities and each
of the Sellers will, at the expense (subject to Section 11.2) of the Company
Entities or such Sellers, as promptly as practicable, make any required or
appropriate governmental filings, including filings pursuant to the Czech
Gaming Laws and comply with any applicable governmental waiting periods,
notification or other procedures required to be complied with by it in
connection with the transactions contemplated by this Agreement. The Sellers
will cooperate with the Company Entities in connection with such filings and
the Sellers and the Company Entities will cooperate with the Buyer in the
making of any filings required of the Buyer.
4.6 PERFORMANCE; RESIGNATIONS. The Company Entities and the
Sellers will perform all acts to be performed by them pursuant to this
Agreement and will refrain from taking or omitting to take any action that
would violate the Sellers' or the Company Entities' representations and
warranties hereunder or render them inaccurate as of the date hereof or the
Closing Date or that in any way would prevent or adversely affect the
consummation of the Sellers' transactions contemplated hereby. Except for
supervisory board members of LMJCR who are appointed or elected by LMJCR's
employees, the Stock Company Entities and the Sellers shall cause the
directors, the supervisory board members and executive officers of the Stock
Company Entities identified by the Buyer prior to the Closing Date to execute
and deliver to the Buyer at Closing their resignations from their director,
supervisory board and executive officer positions at such Company Entities,
effective as of the Closing Date. The Company Entities and the Sellers will
use their respective best endeavors efforts to satisfy or cause to be
satisfied all the conditions to the obligations of the Buyer set forth in
Article VII.
4.7 UPDATING OF INFORMATION. The Company Entities and the
Sellers shall have the continuing obligation to supplement or amend, within a
reasonable period of time prior to the Closing Date, the Schedules being
delivered concurrently with the execution of this Agreement and annexed
hereto with respect to any matter hereafter arising or discovered, which, if
existing or known at the date of this Agreement, would have been required to
be set forth or described in the Schedules.
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4.8 MONTHLY FINANCIAL STATEMENTS; WEEKLY GAMING REVENUE REPORTS;
EMPLOYMENT INFORMATION UPDATES.
(a) The Stock Company Entities will deliver to the Buyer,
promptly after they become available and in any case within 15 days after the
end of each calendar month, unaudited balance sheets of each of the Stock
Company Entities as of the end of such month and unaudited statements of
income of each of the Stock Company Entities for the one-month period then
ending and the period since March 31, 1997. Such balance sheets and
statements of income of the Stock Company Entities shall be in the form
currently prepared by them, if currently prepared and if not so prepared in a
form reasonably satisfactory to the Buyer. All such balance sheets and
statements of income shall be prepared in good faith and derived from the
books and records of the Stock Company Entities.
(b) The Stock Company Entities will deliver to the Buyer,
promptly after they become available and in any case within 5 days after the
end of each week, reports setting forth the gross gaming win of the
applicable Company Entities during such week. Such reports shall be prepared
in good faith and derived from the books and records of the Stock Company
Entities.
(c) The Stock Company Entities will deliver to the Buyer
monthly reports setting forth all terminations of and resignations by
employees of the Stock Company Entities, which reports shall specify (i) the
age and gender of each employee, (ii) the date of termination or resignation,
and (iii) the stated reason or cause (if known to the Company Entity) for
such termination or resignation.
4.9 OTHER TRANSACTIONS. Except as expressly contemplated by this
Agreement, from the date of this Agreement to the Closing, none of the
Sellers, the Company Entities or any of their Affiliates shall, nor shall
they permit any of their respective officers, directors, stockholders,
equityholders or other representatives to, directly or indirectly, encourage,
solicit, initiate or participate in discussions or negotiations with, or
provide any information or assistance to, any Person or group (other than the
Buyer and its representatives) concerning any merger, sale of securities,
sale of substantial assets or similar transaction involving any of the
Company Entities. In the event that any of the Sellers, the Company Entities
or any of such Affiliates receives a proposal relating to any such
transaction, the Sellers or the Company Entities shall promptly notify the
Buyer of such proposal.
4.10 INTEREST PERIODS. Except as set out in SCHEDULE 4.10, the
Company Entities will ensure that any Indebtedness of the Stock Company
Entities outstanding at Closing, to the extent such Indebtedness bears
interest at a rate based on the London interbank offered rate, does not have
an interest period in excess of the one month.
4.11 CONFIDENTIALITY OF INFORMATION. Each of the Sellers and the
Company Entities acknowledge that the terms and provisions of the
confidentiality provisions of the
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Confidentiality and Non-Disclosure Agreement ("Confidentiality Agreement")
dated February 24, 1997 are in full force and effect and apply to any and all
information furnished by the Buyer pursuant to this Agreement. In the event
that this Agreement is terminated and the transactions contemplated hereby
are not consummated, the Confidentiality Agreement shall continue to be in
full force and effect in accordance with its terms for a period of 5 years
from the date of such termination.
ARTICLE V
COVENANTS OF THE BUYER
The Buyer covenants and agrees with the Sellers that from the date
hereof until the Closing:
5.1 PERFORMANCE. The Buyer will perform all acts to be performed
by it pursuant to this Agreement and will refrain from taking or omitting to
take any action that would violate its representations and warranties
hereunder or render them inaccurate as of the date hereof or the Closing Date
or that in any way would prevent or adversely affect the consummation of the
transactions contemplated hereby. The Buyer will use all commercially
reasonable efforts to satisfy or cause to be satisfied all the conditions to
the obligations of the Sellers set forth in Article VIII.
5.2 GOVERNMENTAL FILINGS. The Buyer will, as promptly as
practicable, make any required governmental filings required of the Buyer,
including filings pursuant to the Czech Gaming Laws, and comply with any
applicable governmental waiting periods or notification or other procedures
required to be complied with by it in connection with the transactions
contemplated by this Agreement. The Buyer's filings with the Ministry of
Finance of the Czech Republic in connection with the transactions
contemplated hereby shall be true, complete and correct in all material
respects. The Buyer will cooperate with the Sellers and the Company Entities
in the making of any filings required of the Sellers and the Company Entities.
5.3 CONFIDENTIALITY OF INFORMATION. The Buyer acknowledges that
the terms and provisions of the Confidentiality Agreement are in full force
and effect and apply to any and all information furnished to the Buyer
pursuant to this Agreement. In the event that this Agreement is terminated
and the transactions contemplated hereby are not consummated, the
Confidentiality Agreement shall continue to be in full force and effect in
accordance with its terms for a period of 5 years from the date of such
termination.
ARTICLE VI
OTHER MATTERS
6.1 SITE ACCESS. Commencing no later than the date of this
Agreement, the Company
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Entities will make the Properties located in Ceska Kubice, Rozvadov and
Chvalovice, all in the Czech Republic (the "Casino Properties") reasonably
available to the Buyer and/or the Buyer's consultants for purposes of
conducting an investigation of the Casino Properties, reasonably tailored in
scope, including, but not limited to, trenching areas or drilling core
samples where, in the Buyer's reasonable judgment, Materials of Environmental
Concern could reasonably be expected to exist, all at the Buyer's cost and
expense, to determine whether and to what extent Materials of Environmental
Concern are present at, on or under the Casino Properties ("Buyer's
Environmental Investigation"). The Company Entities will cooperate with the
Buyer and/or the Buyer's consultants, at the Buyer's expense, during the
Buyer's Environmental Investigation. Buyer will repair or otherwise make
good, as the case may be, any Damage to the Property resulting from such
investigation if this Agreement is not consummated.
6.2 INDEMNIFICATION.
(a) The Sellers, jointly and severally, agree to indemnify
and hold the Buyer, and its respective officers, directors, employees and
agents and their respective heirs, successors and assigns (collectively, the
"Buyer Group"), harmless against, and to reimburse the Buyer Group for any
Damages or Tax imposed on or incurred by any of the Buyer Group (a "Buyer
Loss") because of or arising from or related to or in connection with: (i)
any breach of any of the Sellers' representations or warranties or any
failure to perform or violation of any agreement or covenant on the part of
the Seller under this Agreement or under any other agreement referred to
herein or contemplated hereby to which the Seller is a signatory; (ii) any
claims arising out of, relating to or in connection with the businesses of
any Stock Company Entity prior to, and including, the Closing Date (including
without limitation any claims relating to Taxes due and owing by any Seller
prior to the Closing Date and any claims for the cashing of casino chips not
accounted for as of the Closing Date); (iii) any Damages or Tax caused by any
Seller resulting from any investigation, suit, action or other proceeding by
or before any governmental authority that seeks to restrain, modify, prohibit
or revoke, or seeks other relief in connection with, the consummation of this
transaction due to fault or liability of any Seller; (iv) any failure to pay
in full or provide for the payment in full of any creditors of any Stock
Company Entity whose claims have not been assumed by the Buyer other than the
Indebtedness assumed by the Buyer; (v) any liabilities or obligations of any
of the Sellers to and including the Closing Date of any nature whatsoever
whose claims have not been assumed by the Buyer; and (vi) any and all
actions, suits, proceedings, demands, assessments, judgments, out-of-pocket
costs and reasonable attorneys' fees of any nature incident to the foregoing.
(b) (i) The Buyer agrees to indemnify and hold each Seller,
and its respective officers, directors, supervisory board members, employees
and agents and their respective heirs, successors and assigns (collectively,
the "Seller Group"), harmless against, and to reimburse the Seller Group for
any Damages or Tax imposed on or incurred by any of the Seller Group (a
"Seller Loss") because of or arising from or related to or in connection
with: (i) any breach of any of the Buyer's representations or warranties or
any failure to perform or violation of any agreement or
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covenant on the part of the Buyer under this Agreement or any other agreement
referred to herein or contemplated hereby; (ii) any claims arising out of, or
relating to or in connection with the business of the Buyer subsequent to the
Closing Date (including any claims relating to Taxes due and owing by the
Buyer after the Closing Date, but not with respect to Taxes claimed by any
Taxing authority to be due and owing by the Buyer but were incurred or
originated as a result of acts or omissions by any Seller pursuant to Section
6.2(a) above); (iii) any Damages or Tax caused by the Buyer resulting from
any investigation, suit, action or other proceeding by or before any
governmental authority which seeks to restrain, modify, prohibit or revoke,
or seeks other relief in connection with, the consummation of this
transaction due to fault or liability of the Buyer; and (iv) any and all
actions, suits, proceedings, demands, assessments, judgments, out-of-pocket
costs and reasonable attorneys' fees of any nature incident to the foregoing.
(ii) No indemnification payment shall be made by the
Buyer pursuant to this Agreement: (A) unless the Seller Group shall have
given written notice of the claim to the Buyer within 365 days following the
Closing Date with respect to a Damage Claim or 5 years following the Closing
Date with respect to Taxes; nor (B) until the amounts that the Seller Group
would be entitled to receive as indemnification aggregate at least
U.S.$100,000.00 in the case of a Damage Claim made by or on behalf of all of
the Seller Group and in the case of any one or more Selling Stockholder, the
relevant Liability Percentage (as defined below) times U.S.$100,000.00, at
which time the Seller Group or any one or more Selling Stockholder shall be
entitled to receive only payment of all such amounts in excess of
U.S.$100,000.00 or the relevant percentage thereof; and (C) the maximum
amount of the indemnity provided by the Buyer hereunder shall not exceed the
Purchase Price less any amounts due to Buyer pursuant to Section 6.2(a)
hereof which the Buyer has been unable to collect for any reason.
(c) No indemnification payment shall be made by the Sellers
pursuant to this Agreement: (i) unless the Buyer Group shall have given
written notice of the claim to the Seller's Representative within 365 days
following the Closing Date (except for a Tax Claim) as set out in Section
10.3 nor (ii) until the amounts that the Buyer Group would otherwise be
entitled to receive as indemnification aggregate to at least US$100,000.00 at
which time the Buyer Group shall be entitled to receive only payment of all
such amounts in excess of US$100,000.00; (iii) the maximum amount of the
indemnity to be provided by each Selling Stockholder hereunder shall not
exceed the Selling Stockholder's proportionate share of the Purchase Price
(the "Liability Percentage") as set forth in EXHIBIT J, attached hereto; and
(iv) no Selling Stockholder shall be liable to the Buyer Group for an amount
that exceeds the product of the Liability Percentage times the gross amount
of the Damage Claim, less any amount due to the Selling Stockholders pursuant
to Section 6.2(b) which they shall have been unable to collect for any
reason. The funds deposited in the Escrow shall be utilized to cover any and
all Damage Claims, as defined below, relating to any claims made against the
Sellers and shall be paid to the Buyer in accordance with the terms of the
Escrow Agreement for the first 365 days following the Closing Date and,
thereafter, shall be utilized to cover only claims for Taxes.
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(d) (i) For purposes of this Agreement, "Damages" shall
mean all damages, and includes, without limitation, punitive damages,
liabilities, costs, losses, consequential loss, interest, diminutions in
value, fines, penalties, demands, claims, cost recovery actions, lawsuits,
administrative proceedings, orders, response action costs, compliance costs,
investigation expenses, arbitration expenses, consultant fees, attorneys' and
paralegals' fees, and litigation expenses.
(ii) In calculating the amount of any Damages, the
Sellers shall be entitled to set off against such Damage Claim the amount of
the increase in value (after adjustment, where appropriate, for Taxes with
respect to any items of revenue) of the Stock Company Entities or the Assets,
taken as a whole, from the date of the last Party hereto to execute this
Agreement until the Closing Date hereof. Any such increase in value must be
financial in nature, quantifiable, tangible and established by the Sellers by
a preponderance of the evidence.
(iii) No indemnification payment shall be made by the
Sellers pursuant to Section 6.2(a) of this Agreement to the extent that an
appropriate provision or reserve was made for any liability in the Financial
Statements of the Stock Company Entities as of August 31, 1997, as set forth
in SCHEDULE 2.14, and no indemnification payment shall be made by the Sellers
pursuant to Section 6.2(a) of this Agreement to the extent that the Damage
Claim arises solely due to the fact that the provisions or reserve in the
accounts of the Stock Company Entities as of August 31, 1997 (as set forth in
SCHEDULE 2.14) are insufficient solely by reason of any increase in the rate
of Tax made after the date of the Closing.
(iv) No indemnification payment shall be made by the
Sellers pursuant to Section 6.2(a) of this Agreement to the extent that the
Damage Claim arises solely from any fact or matter set forth in the reports
entitled "Due Diligence on 21st Century Resorts a.s. Group of Companies" and
"21st Century Group of Companies - Czech Republic - Financial and Accounting
Due Diligence - April 1997" of Xxxxxx Xxxxxxxx (the "Xxxxxxxx Report") to TWG
dated April 28, 1997, copies of which are attached hereto as EXHIBIT L and
made a part hereof, except for Damage Claims for Taxes and except for other
matters to the extent that the information obtained from or on behalf of the
Sellers relating to such matters in the Xxxxxxxx Report was not correct or
accurate, was not corrected or clarified by the Sellers in a writing
delivered to the Buyer prior to the Closing Date and was relied upon by the
Buyer to its detriment. If information in the Xxxxxxxx Report conflicts with
any representation or warranty of the Sellers or the Company Entities herein,
the representations and warranties shall govern and such conflict shall in no
way limit the indemnification to be made by the Sellers pursuant to Section
6.2(a) of this Agreement.
(e) The indemnified party shall promptly notify the
indemnifying party of any claim that is reasonably likely to give rise to a
claim for indemnification under this Agreement (a "Damage Claim") asserted by
such party or by a third party, stating, to the extent known, with detailed
specificity the nature and basis of the Damage Claim. The failure to give
promptly any such notice shall not relieve the indemnifying party from any
liability hereunder with respect to the subject matter of any Damage Claim
except to the extent that the indemnifying party actually has
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been materially damaged by such failure. If the indemnifying party shall
have confirmed in writing its obligation to indemnify for any liability
asserted in any Damage Claim, then the indemnifying party shall have, at its
election, the right to compromise or defend such Damage Claim involving the
assertion of liability by a third party at the indemnifying party's sole
expense, through counsel chosen by it, provided that, in conducting such
defense, settlement and compromise: (i) the indemnifying party shall not
permit to exist any lien, encumbrance or other adverse charge upon any asset
or business of the indemnified party; (ii) the indemnifying party shall cause
its counsel to consult with the indemnified party and, if applicable, the
indemnified party's counsel and keep them fully advised of the progress of
the defense, settlement and compromise; and (iii) the indemnifying party
promptly shall reimburse the indemnified party for the full amount of any
Damages resulting from such Damage Claim up to the limits set out in Sections
6.2(b), (c), (d) and (g) except to the extent otherwise provided in the next
sentence. If the indemnifying party is required hereunder or elects to
conduct the defense of such Damage Claim, then the indemnified party shall
cooperate with the indemnifying party in connection therewith and shall be
entitled to participate in the defense thereof and to appoint counsel for
that purpose, except that the cost of any such participatng counsel shall be
solely for the account of the indemnified party and the indemnifying party
shall have no responsibility therefor unless: (i) the indemnifying party
shall not have notified the indemnified party that it will assume the defense
of such Damage Claim and have designated counsel reasonably acceptable to the
indemnified party within a reasonable time of the notice of such Damage
Claim; or (ii) the named parties to any proceeding with respect to such
Damage Claim (including any impleaded parties) include both the indemnified
party and the indemnifying party and representation of both parties by the
same counsel would be, in the opinion of counsel selected by the indemnifying
party, inappropriate due to actual or potential differing interests between
them. As long as the indemnifying party is contesting any such Damage Claim
in good faith in accordance with the foregoing requirements, the indemnified
party shall not pay or settle any such Damage Claim. Notwithstanding the
foregoing, the indemnified party may pay or settle any such Damage Claim at
any time, provided that the indemnified party waives any right to indemnity
therefor by the indemnifying parties.
(f) In the event that the indemnifying party fails within 30
days after the receipt of notice of such Damage Claim to notify the
indemnified party and to confirm in writing its obligation to indemnify for
any liability in such Damage Claim, the indemnified party shall have the
right to defend, settle or compromise the Damage Claim in its discretion;
provided, however, that the indemnifying party shall have the right to
participate in the defense of such Damage Claim at its own expense. The
indemnifying party promptly shall reimburse the indemnified party for the
full amount of any Damages resulting from such Damage Claim and any defense,
settlement or compromise thereof and all reasonable related costs incurred by
the indemnified party subject to the limits contained in Sections 6.2 (b),
(c), (d) and (g).
(g) The indemnification provisions in this Agreement shall
not be deemed to preclude the exercise of any other rights or the pursuit of
any other remedies for the breach of this Agreement or with respect to any
misrepresentations or breaches of representations, warranties or
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covenants by either the Sellers, on the one hand, or the Buyer on the other
hand except that no individual may be pursued in more than one capacity (e.g.
individually or as a corporate director or officer) for any Damages and the
Buyer shall not pursue a Damage Claim against any of Xx. Xxxxx Xxxxxxxx of
Rancho Cordova, California, Ms. Xxxxx Petrzikova of Domazlice, Czech
Republic, Ms. Xxxx Bramsworth Xxxxxxx of the Isle of Man, United Kingdom, Mr.
Xxxx Xxxxx Xxxxxx of Domazlice, Czech Republic, or Xx. Xxxxxxx Xxxxxxx of
Kubice, Czech Republic, all of whom are non-stockholder directors or
supervisory directors of the Stock Company Entities. Should the Buyer be
unable to obtain indemnity pursuant to Section 6.2(a), the Buyer will bring
an action against all Sellers jointly. If a Damage Claim arises through the
act or omission of a third party, then the Buyer may seek to preserve any
right it may have against the Selling Stockholders by filing a claim, notice
or request for indemnity but shall pursue its rights against such third party
before seeking to enforce a claim against the Selling Stockholders.
ARTICLE VII
CONDITIONS TO OBLIGATION OF THE BUYER
The obligation of the Buyer to purchase the Shares and the Assets
at the Closing is subject to the satisfaction or waiver by the Buyer of the
following conditions on or before the Closing Date:
7.1 REPRESENTATIONS AND WARRANTIES CORRECT. Each representation
and warranty of each of the Sellers and the Company Entities made herein, and
the statements contained in the Exhibits and Schedules hereto or in any
instrument, list, certificate or writing delivered by the Company Entities or
the Sellers pursuant to this Agreement shall be materially true and correct
as of the date made and, except to the extent such representation, warranty
or statement relates solely to the date hereof or an earlier date, at and as
of the Closing Date, with the same force and effect as though made at and as
of the Closing Date.
7.2 PERFORMANCE; NO DEFAULT. Each of the Sellers and the Company
Entities will have performed and complied in all material respects with all
the obligations, agreements and conditions required by this Agreement to be
performed or complied with by them at or prior to the Closing.
7.3 DELIVERY OF CERTIFICATE. The Sellers and the Company
Entities shall have delivered to the Buyer a certificate, dated the Closing
Date, executed by an authorized executive officer certifying to the
fulfillment of the conditions set forth in Sections 7.1 and 7.2.
7.4 OPINION OF COUNSEL TO THE STOCK COMPANY ENTITIES. The Stock
Company Entities will have delivered to the Buyer an opinion of Xxxxxx and
Xxxxxxxxx, P.A., Prague, Czech Republic, special counsel to the Stock Company
Entities, dated the Closing Date, containing the opinion set forth in EXHIBIT
D.
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7.5 GOOD STANDING CERTIFICATES. The Buyer shall have received
(a) a commercial extract from the Commercial Registry of the relevant
municipal authority that maintains such official records of its municipality
evidencing its continued existence and its good standing as a corporation,
joint stock company, limited liability company or limited partnership
organized under the laws of such country; and (b) from each applicable
municipality referred to in clause (a) above or the respective Stock Company
Entity written evidence, if available, of its current payment of income and
other Taxes.
7.6 CONSENTS. The Buyer shall have received executed
counterparts of the consents referred to in Section 4.4.
7.7 GOVERNMENTAL APPROVALS. All consents, authorizations and
approvals (including, without limitation, any approval required from the
Ministry of Finance of the Czech Republic and all applicable municipalities
and including all land use permits and licenses required to build, access and
operate the casinos at Ceska Kubice and at Rozvadov and a land-use permit for
the development of the site of a prospective casino at Chvalovice, Czech
Republic) from, and all declarations, filings and registrations with, any
governmental authority required to consummate the transactions contemplated
by this Agreement, including those set forth in SCHEDULE 2.13, shall be
pursued diligently by the Sellers in good faith and those obtained as of the
Closing Date shall be made without the imposition of any condition which
would result in a material adverse change pursuant to Section 7.8.
7.8 NO MATERIAL ADVERSE CHANGE. No change, event, development or
combination of developments shall have occurred which, individually or in the
aggregate, has resulted in or could reasonably be expected to result in a
Material Adverse Effect and in respect of which the Buyer shall have given
written notice to the Sellers' Representative within 5 Business Days of the
date on which the Buyer was given written notice of such a change or
development that the Buyer regards as having a Material Adverse Effect.
7.9 ABSENCE OF LITIGATION. There will be no suit, action or
other proceeding pending or threatened seeking to enjoin, restrain, hinder or
delay the purchase and sale of the Shares or the Assets or the other
transactions contemplated hereby, or to impose limitations on the ability of
the Buyer to acquire or hold, or exercise full rights of ownership of, the
Shares or the Assets, or to prohibit Buyer or any of its Affiliates from
effectively controlling in any material respects the business or operations
of the Stock Company Entities or the Assets, at law or in equity, before any
federal, state, municipal or other governmental court, department,
commission, board, agency, instrumentality or authority or arbitration body,
nor shall any injunction or order of any such court or other entity be in
effect as of the Closing Date that restrains or prohibits the purchase and
sale of the Shares or the Assets or the other transactions contemplated
hereby.
7.10 CORPORATE ACTION. All meetings of the Boards of Directors or
Supervisory Boards of
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Directors of each of the Stock Company Entities shall have been held on or
prior to the Closing Date pursuant to which all necessary or appropriate
resignations shall have been tendered and accepted and all nominees of the
Buyer shall have been elected as required pursuant to the terms of this
Agreement.
7.11 ESCROW AGREEMENT. The Sellers and the Escrow Agent shall
have duly executed and delivered to the Buyer the Escrow Agreement
substantially in the form of EXHIBIT A.
7.12 NON-COMPETITION AND NON-INTERFERENCE AGREEMENTS. The Sellers
shall have duly executed and delivered to the Buyer the Non-Competition and
Non-Interference Agreements as set forth in EXHIBIT F.
7.13 DELIVERY OF DOCUMENTS. At or before the Closing, the Sellers
shall have executed and delivered to the Buyer all of the documents set forth
in Section 1.4 hereof and such other documents as the Buyer or its counsel
may reasonably require by written notice given to the Sellers' Representative
within 30 days after the date of execution of this Agreement by the last
Party hereto to do so to effect the transfer, sale and conveyance of the
Shares and the Assets and to consummate all of the transactions contemplated
hereby.
ARTICLE VIII
CONDITIONS TO OBLIGATION OF THE SELLERS
The obligation of the Sellers to sell the Shares and the Assets on
the Closing Date is subject to the satisfaction or waiver by the Sellers'
Representative of the following conditions, on or before the Closing Date:
8.1 REPRESENTATIONS AND WARRANTIES CORRECT. Each representation
and warranty of the Buyer made herein, and the statements contained in the
Exhibits and Schedules hereto or in any instrument, list, certificate or
writing delivered by the Buyer pursuant to this Agreement shall be materially
true and correct as of the date made and at and as of the Closing Date, with
the same force and effect as though made at and as of the Closing Date.
8.2 PERFORMANCE; NO DEFAULT. The Buyer will have performed and
complied in all material respects with all the obligations, agreements and
conditions required by this Agreement to be performed or complied with by it
at or prior to the Closing.
8.3 DELIVERY OF CERTIFICATE. The Buyer shall have delivered to
the Sellers' Representative a certificate, dated the Closing Date, executed
by an executive officer, certifying to the fulfillment of the conditions set
forth in Sections 8.1 and 8.2.
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8.4 OPINION OF COUNSEL TO THE BUYER. The Buyer will have
delivered to the Sellers' Representative an opinion of special counsel to the
Buyer, dated the Closing Date, containing the opinions set forth in EXHIBIT E.
8.5 GOOD STANDING CERTIFICATE. The Sellers' Representative shall
have received from the Buyer a certificate of good standing or of corporate
existence from the Secretary of State of the State of Nevada, United States
of America, which evidences the corporate good standing or existence, as the
case may be, of the Buyer in the jurisdiction of its incorporation.
8.6 FINANCING. On or before the 60th day after the date of the
last Party to execute this Agreement, the Buyer shall deliver to the Sellers'
Representative a certificate of its financier that states that the Buyer has
made the arrangements necessary to permit the Buyer to fulfill its financial
obligations hereunder on the Closing Date, subject to reasonable specified
conditions to funding acceptable to the Sellers, including the truth of the
representations and warranties in this Agreement of the Buyer and the Sellers
as of the Closing Date, the performance of the covenants and agreements in
this Agreement as of the Closing Date, the failure of a material adverse
change to occur with respect to the condition (financial or other) of the
Buyer or the Seller or in the earnings, business affairs or business
prospects of the Buyer or the Seller, if there has occurred any national
emergency in the Czech Republic, or a new outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets in the Czech Republic is such as to make it impracticable to fund the
Buyer's financial obligations under this Agreement, or if a banking
moratorium has been declared in the Czech Republic, the United Kingdom or the
United States.
8.7 ARTICLES OF INCORPORATION. The Buyer shall have provided to
the Sellers' Representative a duly notarized copy of its Articles of
Incorporation translated into the Czech language no later than 30 days after
the execution of this Agreement by the last Party to execute same.
8.8 ABSENCE OF LITIGATION. There will be no suit, action or
other proceeding pending or threatened against any of the Company Entities or
any of the Sellers or the Buyer seeking to enjoin, restrain, hinder or delay
the purchase and sale of the Shares or the Assets or the other transactions
contemplated hereby at law or in equity before any federal, state, municipal
or other governmental court, department, commission, board, agency,
instrumentality or authority or arbitration body, nor shall any injunction or
order of any such court or other entity be in effect as of the Closing which
restrains or prohibits the purchase and sale of the Shares or the Assets or
the other transactions contemplated hereby.
8.9 ESCROW AGREEMENT. The Buyer shall have duly executed and
delivered to the Sellers' Representative and the Escrow Agent the Escrow
Agreement substantially in the form of EXHIBIT A.
8.10 DELIVERY OF DOCUMENTS. At or before the Closing, the Buyer
shall have executed and delivered to the Sellers' Representative all of the
documents set forth in Section 1.5 hereof and such other documents as the
Sellers' Representative or Xxxxxxx Xxxxxxx, its counsel, may reasonably
Stock Purchase Agreement
Page 45
require by written notice given to the Buyer within 30 days after the date of
execution of this Agreement by the last Party to do so to effect the purchase
of the Shares and the Assets and to consummate all of the transactions
contemplated hereby.
ARTICLE IX
CERTAIN ADDITIONAL COVENANTS
Each Selling Stockholder individually covenants with the Buyer
hereby as follows:
9.1 NONCOMPETITION. Except as set forth in SCHEDULE 9.1, for a
period of 1 year following the Closing Date, without the written consent of
the Buyer, each of the Selling Stockholders and their Affiliates shall not,
directly or indirectly, through equity ownership or otherwise, own, operate
or make any direct or indirect loan, advance, lease, or other extension of
credit, or capital contribution to, or purchase or acquire any capital stock
or indebtedness or similar instrument of, or make any type of equity
investment (including investments in securities or instruments convertible
into, exchangeable for or exercisable for equity securities) in, any Person
(an "Investment") engaged in any casino-style gaming or related gaming
enterprise (a "Gaming Business") within a 100 kilometer radius of the casino
locations in Ceska Kubice, Rozvadov or Chvalovice (the "Restricted Area").
This prohibition on Investments shall not apply to passive or other
Investments made following the date hereof with the prior written consent of
the Buyer in its sole discretion. Each Selling Stockholder shall execute a
Non-Competition and Non-Interference Agreement as of the Closing Date as set
forth in EXHIBIT F hereto.
9.2 NON-INTERFERENCE AGREEMENT. For a period of 1 year following
the Closing Date, each of the Selling Stockholders hereby covenants and
agrees that neither they nor any of their Affiliates will, directly or
indirectly, for whatever reason, whether for their own account or for the
account of any other Person: (i) solicit, employ or otherwise interfere with
any of the Stock Company Entities' existing Contracts or relationships with
any customer, affiliate, employee, officer, director, supplier or any
independent contractor whether the Person is employed by or associated with
the Stock Company Entities or with the Buyer on the Closing Date or at any
time thereafter; or (ii) solicit or otherwise interfere with any existing or
proposed Contract between the Stock Company Entities and any other party
whatsoever.
9.3 COVENANT NOT TO DISCLOSE. The Sellers hereby agree that they
possess certain data and knowledge of operations of the business of the Stock
Company Entities which are proprietary in nature and confidential. Each of
the Selling Stockholders covenants and agrees that they will not, at any time
after the Closing Date, reveal, divulge or make known to any person (other
than the Buyer) or use for their own account or for the account of any
Person, any confidential or proprietary record, data, trade secret, financial
information, Intellectual Property, Business Know-How, personnel policy,
customer list of the Stock Company Entities as of the Closing Date, or any
other confidential or proprietary information whatsoever relating to the
Stock Company Entities or,
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whether or not obtained with the knowledge and permission of the Buyer
(exclusive of any information which at the time of disclosure generally is
available to and known by the public, other than as a result of any
unauthorized disclosure by the Sellers). The Sellers further covenant and
agree that they shall not divulge any such confidential or proprietary
information that they may acquire during any transition period in which they
assist or consult with the Buyer to facilitate the transfer and the continued
success of the business of the Stock Company Entities, and the Sellers will
hold such confidential and proprietary information in trust for the sole
benefit of the Buyer and its successors and assigns.
9.4 PROVISO FOR ACTIVITIES OF XX. XXXXXX AND LEGAL OBLIGATIONS.
The restrictions contained in Sections 9.1, 9.2 and 9.3 shall not prevent or
restrict the activities of Xx. Xxxxxx in the ordinary course of giving advice
to his clients in his professional capacity as a licensed attorney or
counsellor at law, nor, with respect to any interest he may have or acquire
in any national on-line lottery promoted in the Czech Republic, nor with
respect to all Selling Stockholders, from complying with any legal obligation
to supply information or evidence to any governmental body or court of law in
accordance with the requirements of such governmental body or court.
ARTICLE X
TERMINATION; SURVIVAL
10.1 TERMINATION OF AGREEMENT. This Agreement may be terminated
at any time prior to the Closing:
(a) by mutual written consent of the Buyer and the Sellers'
Representative;
(b) by the Buyer, if there has been a material violation in
or breach by any of the Company Entities or any of the Sellers of any of the
agreements, representations or warranties contained herein that has not been
waived by the Buyer in writing;
(c) by the Sellers' Representative, if there has been a
material violation or breach by the Buyer of any of the agreements,
representations or warranties contained herein that has not been waived by
the Sellers' Representative in writing;
(d) (i) by the Buyer or the Sellers' Representative, if the
Closing shall not have occurred on or before the date that is the 70th day
after the execution of this Agreement by the last Party to execute same, or
on such other date as may be agreed to by the Buyer and the Sellers'
Representative, provided that the Buyer has provided the certificate required
by Section 8.6; or (ii) by the Buyer or the Sellers' Representative, if the
Closing shall not have occurred on or before the date which is the tenth day
after the delivery of the certificate required by Section 8.6 or on such
other date as the Buyer and the Sellers' Representative may agree upon in
writing; or (iii) by the Buyer or the Sellers' Representative, if the Buyer
shall have failed to comply with the requirements
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of Section 8.6 hereof on or before the date which is the 60th day after the
execution of this Agreement by the last Party to execute same; provided,
however, that neither Buyer nor the Sellers' Representative shall be entitled
to terminate this Agreement pursuant to this Section 10.1(d) if such Party's
(including, any Seller's) knowing or willful breach of this Agreement has
prevented the consummation of the transactions contemplated hereby; or
(e) by the Buyer if any of the conditions to the obligations
of Buyer set forth in Article VII shall have become incapable of fulfillment
and shall not have been waived by the Buyer in writing, or by the Sellers'
Representative if any of the conditions to the obligations of the Sellers set
forth in Article VIII shall have become incapable of fulfillment and shall
not have been waived by the Sellers' Representative in writing; provided,
however, that neither the Buyer nor the Sellers' Representative shall be
entitled to terminate this Agreement pursuant to this Section 10.1(e) if such
Party (including, the Sellers) is in breach in any material respect of its
representations, warranties, covenants or agreements contained in this
Agreement.
10.2 EFFECT OF TERMINATION.
(a) In the event of termination of this Agreement by either
the Buyer or the Sellers' Representative as provided in Section 10.1, this
Agreement shall forthwith become void and of no further force and effect
(other than this Section 10.2, Section 4.11, Section 5.3, Section 11.2,
Section 11.7, Section 11.9 and Section 11.16), and except as set forth below,
there shall be no liability on the part of the Buyer, the Company Entities or
the Sellers (or their respective shareholders, officers, directors,
employees, Affiliates or representatives) to one another, except for any
liability of the breaching Party for any breaches of this Agreement prior to
the time of such termination.
(b) If this Agreement is terminated by the Parties pursuant
to Section 10.1(a) or by the Buyer pursuant to Section 10.1(b), 10.1(d) or
10.1(e), then the Buyer shall send a written notice of termination to the
Sellers' Representative and the Escrow Agent and the Escrow Agent shall
return the Deposit Escrow (with accrued interest) to the Buyer by wire
transfer pursuant to the terms and conditions of the Escrow Agreement as set
forth in EXHIBIT A attached hereto.
(c) If this Agreement is terminated by the Sellers'
Representative pursuant to Section 10.1(c), 10.1(d) (except with respect to
termination due to the Buyer's failure to comply with Section 8.6) or
10.1(e), then the Sellers' Representative shall send a written notice of
termination to the Buyer and to the Escrow Agent and the Escrow Agent shall
pay to the Sellers' Representative the Deposit Escrow pursuant to the terms
and conditions of the Escrow Agreement attached hereto as EXHIBIT A. If this
Agreement is terminated by the Parties pursuant to Section 10.1(a) or by the
Sellers' Representative as set forth in the immediately preceding sentence,
the Sellers may retain the Expense Deposits.
(d) If this Agreement is terminated by the Buyer or the
Sellers' Representative by
Stock Purchase Agreement
Page 48
reason of the Buyer's failure to provide the certificate required by Section
8.6, then the terminating Party shall send a written notice of termination to
the other Party and the Escrow Agent and the Escrow Agent shall pay to the
Sellers' Representative from the Deposit Escrow a sum equal to the documented
legal and other professional fees and expenses incurred by the Sellers in
relation to this Agreement as certified by the Sellers' Representative, less
U.S.$140,000.00, and thereafter the Escrow Agent shall promptly return the
balance of the Deposit Escrow (with accrued interest) to the Buyer by wire
transfer pursuant to the terms and conditions of the Escrow Agreement as set
forth in EXHIBIT A attached hereto.
10.3 SURVIVAL OF REPRESENTATIONS. All representations and
warranties contained in this Agreement, and agreements made by any Party to
this Agreement, shall survive the Closing and any investigation at any time
made by or on behalf of any party hereto for a period ending on the date for
1 year after the Closing Date, unless a claim has been notified within the 1
year period (with information regarding the nature and estimated amount of
it), in which case the time period shall continue until such claim is
resolved (except with respect to Taxes as set forth in Section 1.2(d), which
shall be for 5 years); provided, however, that all representations and
warranties contained in Section 2.1 (Capitalization), Section 2.2 (Ownership
of Shares) and Section 2.18 (Title to Assets), shall survive the Closing.
All covenants and agreements in this Agreement relating to periods after the
Closing Date shall survive the Closing (except as provided therein);
provided, however, that the covenants contained in Sections 4.6 and 5.1 with
respect to refraining from taking or omitting to take action that would
violate or render inaccurate a Party's representations or warranties shall
survive with respect to any particular representation or warranty only for so
long as such representation or warranty survives pursuant to this Section
10.3.
10.4 STATEMENTS AS REPRESENTATIONS. All statements contained
herein or in any Schedule, Exhibit or closing certificate delivered pursuant
hereto or in connection with the transactions contemplated hereby shall be
deemed representations and warranties within the meaning of Sections 7.1, 8.1
and 10.3. No Party may rely upon any statement, representation or warranty
unless it is set out herein or in any Exhibit or Schedule hereto.
ARTICLE XI
MISCELLANEOUS
11.1 REMEDIES CUMULATIVE. Except as herein expressly provided,
the remedies provided herein shall be cumulative and shall not preclude
assertion by any Party hereto of any other rights or the seeking of any other
remedies against any other Party hereto.
11.2 EXPENSES. Except as otherwise expressly provided in this
Agreement, the Company Entities, the Sellers and the Buyer each shall pay its
own legal, accounting and other miscellaneous expenses incident to this
Agreement.
Stock Purchase Agreement
Page 49
11.3 PRESS RELEASES AND ANNOUNCEMENTS. After the date of this
Agreement and prior to the Closing, no Party to this Agreement will directly
or indirectly make or cause to be made any public announcement or disclosure,
or issue any notice with respect to this Agreement or the transactions
contemplated by this Agreement without the prior consent of the other Parties
to this Agreement; provided, however, that the Buyer may disclose upon the
prior notice to the Sellers' Representative, information relating to the
terms and conditions of this Agreement (including a copy of this Agreement)
as required by the U.S. Securities Exchange Act of 1934, as amended, and the
regulations and forms promulgated thereunder, and further provided that any
Party to this Agreement may make any public announcement or disclosure that
is required by any other law or regulation including but not limited to any
notice required to be given by the Sellers to the relevant authorities under
the Czech Gaming Laws or otherwise (in which case the disclosing Party shall,
to the extent practicable, advise the other Parties to this Agreement and
provide them with a copy of such proposed disclosure prior to making the
disclosure); provided further, that except as may be required by law or
regulation, in making such disclosure, the disclosing Party shall not
directly or indirectly disclose the name or any other details of the
non-disclosing Party.
11.4 ENTIRE AGREEMENT. This Agreement and the Exhibits and
Schedules and other writings referred to herein or delivered pursuant hereto
that form a part hereof contain the entire understanding of the parties with
respect to its subject matter. No other contract, agreement, instrument or
document, including prior drafts of this Agreement, and no understandings or
arrangements, written or oral, shall have any effect hereon and shall not be
used to determine or interpret the meaning of this Agreement.
11.5 AMENDMENT; EXTENSION AND WAIVER.
(a) This Agreement supersedes all prior agreements and
understandings between the Parties with respect to its subject matter, except
that the Confidentiality Agreement shall not be superseded hereby, except for
Sections 4, 10 and 12 thereof which shall be superseded by this Agreement.
(b) This Agreement may not be amended except by an
instrument in writing signed on behalf of all of the Parties hereto.
(c) Any agreement on the part of a Party hereto to any
extension or waiver under this Section 11.5 shall be valid only if set forth
in an instrument in writing signed on behalf of such Party.
(d) Except as expressly provided in this Agreement, no delay
on the part of any Party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part
of any Party of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder.
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Page 50
11.6 HEADINGS. The Article and Section headings contained herein
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
11.7 NOTICES. All notices, requests, demands and other
communications made under or by reason of the provisions of this Agreement
will be in writing and will be given by hand delivery, certified or
registered mail, return receipt requested, telecopier (with a copy also sent
by hand delivery or air courier, which shall not alter the time at which the
telecopier notice is deemed received) or air courier to the Parties at the
addresses set forth below. Such notices shall be deemed given: at the time
personally delivered, if delivered by hand with receipt acknowledged; at the
time received, if sent by certified or registered mail; upon transmission
thereof by the sender and issuance by the transmitting machine of a
confirmation slip that the number of pages constituting the notice have been
transmitted without error, if telecopied; and the first Business Day after
timely delivery to the courier, if sent by air courier. Notices shall be
addressed as follows:
If to the Buyer:
Trans World Gaming Corporation
Xxx Xxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx of America
Attention: Xxxxxx Tottenham
President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy (which shall not constitute notice) given in the manner
prescribed above to:
Elias, Matz, Xxxxxxx & Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Sellers' Representative:
Stock Purchase Agreement
Page 00
Xxxxxxx Xxxxxxx Xxxxxxxxxx
00X Xxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone: (00) 000 000 0000
Telecopier: (00) 000 000 0000
With a copy (which shall not constitute notice) given in the manner
prescribed above to:
Xx. Xxxxx Xxxxxxxx
Chief Financial Officer
XX Xxxxx, Inc.
0000 Xxxxxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Company Entities:
21st Century Resorts, a.s.
Ceska Xxxxxx
Xxxxxxx 00
Xxxxx Xxxxxxxx
Attention: Xxxx X. Xxxxxx
Chairman of the Board of Directors
Telephone: (00) 00 000 0000
Telecopier: (00) 00 000 0000
With a copy (which shall not constitute notice) given in the manner
prescribed above to:
Xxxxxxx Xxxxxxx Solicitors
00X Xxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone: (00) 000 000 0000
Telecopier: (00) 000 000 0000
and to:
Stock Purchase Agreement
Page 52
Xxxxxx & Xxxxxxxxx, P.A.
Xxxxxxxxxxx 0,
000 00 Xxxxx 0
Xxxxx Xxxxxxxx
Attention: JUDr. Xxxxxx Xxxxxx
Telephone: (00) 0 00 00 00
Telecopier: (00) 0 00 00 00
and to:
JUDr Xxxxxx Xxxxxx
E Zahradky 891
000 00 Xxxxxx
Xxxxx Xxxxxxxx
Telephone: (00) 000 000 000
Telecopier: (00) 000 000 000
If to Xxxxxxx Xxxxxxx:
Xxxxxxx Xxxxxxx Solicitors
00X Xxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attention: Xxxxxxx Xxxxxxx, Esq.
Telephone: (00) 000 000 0000
Telecopier: (00) 000 000 0000
If to the Escrow Agent:
The Manager
Structured Finance Services
Chase Manhattan Bank
Trinity Tower
9 Xxxxxx Xxxx Street
London E1 9YT
Attention: Xxxxx Xxxxxxx
Telephone: (00) 000 000 0000
Telecopier: (00) 000 000 0000
11.8 ASSIGNMENT. This Agreement will be binding upon and inure to
the benefit of the Parties hereto and their respective successors, legal
representatives and assigns, but this Agreement may not be assigned by any
Party without the written consent of the other Party; provided,
Stock Purchase Agreement
Page 53
however, that the Buyer may assign all or any portion of its respective
rights hereunder without the prior written consent of the Sellers or any of
the Company Entities to an Affiliate of the Buyer, but such assignment shall
not relieve the Buyer of its obligations hereunder. Any attempted assignment
in violation of this Section 11.8 shall be void.
11.9 APPLICABLE LAW. This Agreement will be governed by and
construed and enforced in accordance with the laws of England, except with
respect to statutory requirements for the transfer of the shares or ownership
interests in the Company Entities, the duties of the members of the Board and
of the Supervisory Board of the Stock Company Entities, accounting, record
keeping, the holding of any License, Environmental Laws and/or the holding of
title to Property, which shall be governed by and construed in accordance
with the laws of the Czech Republic.
11.10 WORDS IN SINGULAR AND PLURAL FORM. Words used in the
singular form in this Agreement shall be deemed to import the plural, and
vice versa, as the sense may require.
11.11 FURTHER ASSURANCES. Each of the Sellers, the Company
Entities and the Buyer will use their respective commercially reasonable
efforts to do or cause to be done all things necessary, proper or advisable
to consummate the transactions contemplated by this Agreement. Without
limiting the foregoing, the Sellers, the Company Entities and the Buyer will
reasonably cooperate, and will cause their respective Affiliates, officers,
employees, agents, auditors and representatives reasonably to cooperate, in
providing to each other all information and customary consents pertinent to
the transactions contemplated by this Agreement, including information as to
their, if applicable, ownership structure, corporate structure, officers and
directors, shareholders and partners' identity, financing, transfers of
interest and other information, as shall be required by any regulatory
authority with jurisdiction over such Parties in connection with the
consummation of the transactions contemplated hereby or with respect to any
United States federal or state securities law requirements in any state in
which such Parties have an interest.
11.12 COUNTERPARTS. This Agreement may be executed in several
originals, all of which together will constitute one and the same instrument.
11.13 SELLERS' REPRESENTATIVE; AGENT FOR SERVICE.
(a) The Sellers hereby appoint Xxxxxxx Xxxxxxx Solicitors,
London, England, who may nominate one of their partners as the Sellers'
Representative (the "Sellers' Representative"). The Sellers' Representative
shall have full authority to exercise (or refrain from exercising) all rights
and powers of each Seller hereunder, and each Seller agrees to be bound by
any and all actions taken by the Sellers' Representative in his capacity as
such. The action of the Sellers' Representative shall be binding upon all
Sellers and the Buyer and the Escrow Agent and others dealing with the
Sellers' Representative may rely upon the actions and representations of the
Sellers' Representative, without investigation. The Sellers agree to
indemnify and hold the Sellers' Representative harmless for all actions taken
by him in such capacity.
Stock Purchase Agreement
Page 54
(b) The Sellers hereby irrevocably appoint Xxxxxxx Xxxxxxx
Solicitors as their agent to accept service of process in England in any
legal action or proceeding arising out of or in connection with or related to
this Agreement, service upon whom shall be deemed completed whether or not
forwarded or received by such Party.
11.14 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the Parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any person, other
than the Parties hereto and such assigns, any legal or equitable rights
hereunder.
11.15 SEVERABILITY. 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 (or the remaining portion thereof) or the
application of such provision to any other Persons or circumstance.
11.16 CONSENT TO JURISDICTION. The Buyer, the Sellers and the
Company Entities irrevocably submit to the exclusive jurisdiction of the High
Court of Justice, London, England for the purposes of any suit, action or
other proceeding arising out of this Agreement or any transaction
contemplated hereby.
11.17 DEFINITIONS. For purposes of this Agreement, the following
terms shall be defined as set forth below:
"Affiliate" or "Affiliated" shall be defined as set forth in
Section 2.7 of this Agreement.
"Agreement" shall be defined as set forth in the first paragraph of
this Agreement.
"Xxxxxxxx Report" shall be defined as set forth in Section
6.2(d)(iv) of this Agreement.
"Assets" shall be defined as set forth in Section 1.1(b) of this
Agreement.
"Asset Sellers" shall be defined as set forth in the third
"Whereas" paragraph of this Agreement.
"Associate" shall be defined as set forth in Section 2.7 of this
Agreement.
"Atlantic" shall be defined as set forth in the second "Whereas"
paragraph of this Agreement.
"Xxxxxxx Xxxxxxx" shall be defined as set forth in Section 1.2(c)
of this Agreement.
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Page 55
"Business Day" shall be defined as set forth in Section 1.2(d) of
this Agreement.
"Business Know-How" shall be defined as set forth in Section
2.20(c)(ii) of this Agreement.
"Buyer" shall be defined as set forth in the first paragraph of
this Agreement.
"Buyer Group" shall be defined as set forth in Section 6.2(a) of
this Agreement.
"Buyer Loss" shall be defined as set forth in Section 6.2(a) of
this Agreement.
"Buyer's Environmental Investigation" shall be defined as set forth
in Section 6.1 of this Agreement.
"Buyer's Notice" shall be defined as set forth in Section 4.2(b) of
this Agreement.
"Casino Properties" shall be defined as set forth in Section 6.1 of
this Agreement.
"CLM" shall be defined as set forth in the second "Whereas"
paragraph of this Agreement.
"Closing" shall be defined as set forth in Section 1.3 of this
Agreement.
"Closing Date" shall be defined as set forth in Section 1.3 of this
Agreement.
"Closing Payment" shall be defined as set forth in Section 1.2(c)
of this Agreement.
"Company Entity" and "Company Entities" shall be defined as set
forth in the second "Whereas" paragraph of this Agreement.
"Confidentiality Agreement" shall be defined as set forth in
Section 4.11 of this Agreement.
"Contract" shall be defined as set forth in Section 2.2 of this
Agreement.
"Czech Gaming Laws" shall be defined as set forth in Section
2.29(a) of this Agreement.
"Damage Claim" shall be defined as set forth in Section 6.2(e) of
this Agreement.
"Damages" shall be defined as set forth in Section 6.2(d)(i) of
this Agreement.
"Deposit Escrow" shall be defined as set forth in Section 1.2(b) of
this Agreement.
"Deposits" shall be defined as set forth in Section 1.2(a) of this
Agreement.
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Page 56
"Effective Date" shall be defined as set forth in Section 1.3 of
this Agreement.
"Environmental Claim" shall be defined as set forth in Section
2.25(b) of this Agreement.
"Environmental Laws" shall be defined as set forth in Section
2.16(d)(i) of this Agreement.
"Environmental Permits" shall be defined as set forth in Section
2.25(a) of this Agreement.
"Escrow Agreement" shall be defined as set forth in Section 1.2(c)
of this Agreement.
"Escrow Agent" shall be defined as set forth in Section 1.2(b) of
this Agreement.
"Escrow Termination Date" shall be defined as set forth in Section
1.2(d) of this Agreement.
"Expense Deposits" shall be defined as set forth in Section 1.2(a)
of this Agreement.
"Financial Statements" shall be defined as set forth in Section
2.14 of this Agreement.
"Gameway" shall be defined as set forth in the first paragraph of
this Agreement.
"Gaming Business" shall be defined as set forth in Section 9.1 of
this Agreement.
"Indebtedness" shall be defined as set forth in Section 2.15(c)(i)
of this Agreement.
"Intellectual Property" shall be defined as set forth in Section
2.20(c)(i) of this Agreement.
"Investment" shall be defined as set forth in Section 9.1 of this
Agreement.
"IRS" shall be defined as set forth in Section 1.7 of this
Agreement.
"Laws" shall be defined as set forth in Section 2.29(a) of this
Agreement.
"Leased Property" shall be defined as set forth in Section 2.16(b)
of this Agreement.
"Liability Percentage" shall be defined as set forth in Section
6.2(c) of this Agreement.
"License" or "Licenses" shall be defined as set forth in Section
2.29(d) of this Agreement.
"License Agreements" shall be defined as set forth in Section
2.20(a) of this Agreement.
"Liens" shall be defined as set forth in Section 1.1(a)(i) of this
Agreement.
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Page 57
"LMJC" shall be defined as set forth in the second "Whereas"
paragraph of this Agreement.
"LMJCR" shall be defined as set forth in the second "Whereas"
paragraph of this Agreement.
"LMJS" shall be defined as set forth in the second "Whereas"
paragraph of this Agreement.
"Material Adverse Effect" shall be defined as set forth in Section
2.10(b) of this Agreement.
"Materials of Environmental Concern" shall be defined as set forth
in Section 2.16(d)(ii) of this Agreement.
"Monarch" shall be defined as set forth in the first paragraph of
this Agreement.
"New Casinos" shall be defined as set forth in Section 1.2(c) of
this Agreement.
"Owned Property" shall be defined as set forth in Section 2.16(a)
of this Agreement.
"Party" or "Parties" shall be defined as set forth in the first
paragraph of this Agreement.
"Percentage Interest" shall be defined as set forth in Section 2.2
of this Agreement.
"Permits" shall be defined as set forth in Section 2.29(b) of this
Agreement.
"Permitted Liens" shall be defined as set forth in Section 2.18 of
this Agreement.
"Person" shall be defined as set forth in Section 2.1(e) of this
Agreement.
"Plan" shall be defined as set forth in Section 2.24(a) of this
Agreement.
"Property" shall be defined as set forth in Section 2.16(b) of this
Agreement.
"Purchase Price" shall be defined as set forth in Section 1.2(c) of
this Agreement.
"Resorts" shall be defined as set forth in the first paragraph of
this Agreement.
"Restricted Area" shall be defined as set forth in Section 9.1 of
this Agreement.
"Seller" or "Sellers" shall be defined as set forth in the first
paragraph of this Agreement.
"Seller Group" shall be defined as set forth in Section 6.2(b) of
this Agreement.
"Seller Loss" shall be defined as set forth in Section 6.2(b) of
this Agreement.
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Page 58
"Sellers' Notice" shall be defined as set forth in Section 4.2(b)
of this Agreement.
"Sellers' Representative" shall be defined as set forth in Section
11.13(a) of this Agreement.
"Selling Stockholders" shall be defined as set forth in Section
1.1(a)(i) of this Agreement.
"Shares" shall be defined as set forth in the third "Whereas"
paragraph of this Agreement.
"Stock Company Entity" or "Stock Company Entities" shall be defined
as set forth in the third "Whereas" paragraph of this Agreement.
"Summary Plan Description" and "Summary Material Modifications" are
described in Section 2.24(b)(iii) of this Agreement.
"Tangible Personal Property" shall be defined as set forth in
Section 2.19 of this Agreement.
"Taxes" shall be defined as set forth in Section 2.15(c)(ii) of
this Agreement.
"Trade Secrets" shall be defined as set forth in Section 2.20(c)(i)
of this Agreement.
"Trademarks" shall be defined as set forth in Section 2.20(c)(i) of
this Agreement.
"TWG" shall be defined as set forth in the first paragraph of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be duly executed and delivered by a duly authorized officer of the Buyer
and of the Company Entities, and by each of the Sellers, as of the day and
year first above written.
TRANS WORLD GAMING CORPORATION
By:
---------------------------------------
Name: Xxxxxx Tottenham
Title: President
21ST CENTURY RESORTS, A.S.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GAMEWAY LEASING LTD.
Stock Purchase Agreement
Page 59
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
MONARCH LEASING LIMITED
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXX X. XXXXXX
By:
---------------------------------------
Xxxx X. Xxxxxx
XXX XXXXXX
By:
---------------------------------------
Xxx Xxxxxx
X.X. XXXXX
By:
---------------------------------------
X.X. Xxxxx
XXXXX XXXXX
By:
---------------------------------------
Xxxxx Xxxxx
JUDR. XXXXXX XXXXXX
By:
---------------------------------------
Xxxxxx Xxxxxx
XXXXX XXXXXXXXX
By:
---------------------------------------
Xxxxx Xxxxxxxxx
Stock Purchase Agreement
Page 60
XXXXX XXXXXXX
By:
---------------------------------------
Xxxxx XxXxxxx
DR. XXXX XXXXXX
By:
---------------------------------------
Dr. Xxxx Xxxxxx
EXHIBIT A
ESCROW AGREEMENT
EXHIBIT B
PLANS FOR CONSTRUCTION OF CASINOS IN ROZVADOV
AND CHVALOVICE, CZECH REPUBLIC
EXHIBIT C
[DELETED]
EXHIBIT D
OPINION OF XXXXXX AND POLIAKOFF, P.A.
EXHIBIT E
OPINION OF XXXXXX XXXXXX & XXXXXXX
EXHIBIT F
NON-COMPETITION AND NON-INTERFERENCE AGREEMENT
EXHIBIT G
XXXX OF SALE AND ASSIGNMENT OF ASSETS
EXHIBIT H
ASSIGNMENT OF TRADEMARKS
EXHIBIT I
ALLOCATION OF PURCHASE PRICE
[TO BE PROVIDED]
EXHIBIT J
SELLING STOCKHOLDERS' LIABILITY PERCENTAGES
EXHIBIT K
DEBTORS AND ACCRUALS OF THE STOCK COMPANY ENTITIES
[TO BE PROVIDED]
EXHIBIT L
XXXXXXXX REPORT
SCHEDULE 3.3
CONSENTS REQUIRED TO BE OBTAINED BY BUYER
Possible vote of the stockholders of the Buyer with respect to the
issuance of equity securities in connection with the financing of the
acquisition.
SCHEDULE 9.1
EXCEPTION TO "RESTRICTED AREA"
The Buyer agrees that Section 9.1 shall not apply to the casino
owned and operated by Millennium Gaming and Developments a.s., an Affiliate
of Xx. Xxxxx and Xx. XxXxxxx, located in Pomazi, Czech Republic.
