SUBSCRIPTION AGREEMENT
between
CENTURY CASINOS AFRICA (PROPRIETARY) LIMITED
and
CALEDON CASINO BID COMPANY (PROPRIETARY) LIMITED
and
CALEDON OVERBERG INVESTMENTS (PROPRIETARY) LIMITED
and
CENTURY CASINOS INC. (for purposes of clause 10.6 only)
1 INTERPRETATION
In this agreement, clause headings are for convenience and shall not
be used in its interpretation and, unless the context clearly
indicates a contrary intention, -
1.1 an expression which denotes -
1.1.1 any gender includes the other genders;
1.1.2 a natural person includes an artificial or juristic person and
vice versa;
1.1.3 the singular includes the plural and vice versa;
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1.2 the following expressions shall bear the meanings assigned to
them below and cognate expressions bear corresponding
meanings -
1.2.1 "the/this agreement" - this document, as amended from time to
time;
1.2.2 "business day" - any day other than a Saturday, Sunday or
official public holiday in the Republic of South Africa;
1.2.3 "business sale agreement" - the written sale of business
agreement to be entered into between the company, the
subscribers and Xxxxxxxxxx Country Hotel and Spa (Pty) Ltd
("Hotelco") at more or less the same time as the conclusion
of this agreement;
1.2.4 "Century subscription shares" - 2 000 ordinary shares of R1 each
in the share capital of the company;
1.2.5 "COIL subscription shares" - 1 900 ordinary shares of Rl each in
the share capital of the company;
1.2.6 "company" - Caledon Casino Bid Company (Proprietary) Limited, a
private company duly incorporated in the Republic of
South Africa, with registration number 1996/010708/07;
1.2.7 "COIL" - Caledon Overberg Investments (Proprietary) Limited, a
private company duly incorporated in the Republic of South
Africa, with registration number 96/06728/07;
1.2.8 "effective date" - the first business day after the date on which
the suspensive conditions are fulfilled;
1.2.9 "loan agreement" - the written loan agreement to be entered
into between the company and the subscribers at more or less
the same time as the conclusion of this agreement;
1.2.10 "rental enterprise sale agreement" - the written rental
enterprise sale agreement to be entered into between the
company, the subscribers, and Devco at more or less the
same time as the conclusion of this agreement;
1.2.11 "share certificates" - share certificates in respect of the
relevant subscription shares, indicating the relevant
subscriber as the sole holder thereof;
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1.2.12 "signature date" - date of signature of this agreement by
the signatory which signs it last;
1.2.13 "Century" - Century Casinos Africa (Pty) Ltd, a private
company duly incorporated in the Republic of South Africa,
with registration number 1996/010501/07;
1.2.14 "subscription price" - the full amount payable by the
subscribers to the company in respect of the subscription
for their subscription shares;
1.2.15 "subscription shares" - the Century subscription shares and/or
the COIL subscription shares, as the context may indicate;
1.2.16 "suspensive conditions" - the suspensive conditions set out
in 3.1;
1.2.17 "business agreements" - the business sale agreement and the
rental enterprise sale agreement;
1.2.18 "the subscriber" - Century and/or COIL, as the context may
indicate;
1.2.19 "transfer date" - the date on which the company pays Hotelco and
Devco in terms of the business sale agreement and the rental
enterprise sale agreement, being the date on which all properties
which are to be transferred to the company in terms of those
agreements are transferred to the company;
1.2.20 "Century Inc." - Century Casinos Inc. a company incorporated in
the United States of America, being the ultimate holding company
of Century;
1.3 any reference to any statute, regulation or other legislation shall
be a reference to that statute, regulation or other legislation
as at the signature date, and as amended or substituted from
time to time;
1.4 if any provision in a definition is a substantive provision conferring a
right or imposing an obligation on any party then, notwithstanding
that it is only in a definition, effect shall be given to that
provision as if it were a substantive provision in the body of
this agreement;
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1.5 where any term is defined within a particular clause other than this 1,
that term shall bear the meaning ascribed to it in that clause
wherever it is used in this agreement;
1.6 where any number of days is to be calculated from a particular day, such
number shall be calculated as excluding such particular day and
commencing on the next day. If the last day of such number so
calculated falls on a day which is not a business day, the last
day shall be deemed to be the next succeeding day which is a
business day;
1.7 any reference to days (other than a reference to business days), months
or years shall be a reference to calendar days, months or
years, as the case may be;
1.8 any term which refers to a South African legal concept or process (for
example, without limiting the aforegoing, winding-up or curatorship)
shall be deemed to include a reference to the equivalent or analogous
concept or process in any other jurisdiction in which this agreement
may apply or to the laws of which a party may be or become
subject;
1.9 the use of the word "including" followed by a specific example/s shall
not be construed as limiting the meaning of the general wording
preceding it and the eiusdem genefis rule shall not be applied in
the interpretation of such general wording or such specific
example/s.
The terms of this agreement having been negotiated, the contra
proferentem rule shall not be applied in the interpretation
of this agreement.
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2 INTRODUCTION
2.1 In terms of a written shareholders agreement with the company, Devco,
the subscribers and others, the subscribers have undertaken to make
capital funding available to the company.
2.2 The subscribers will, as part of their funding obligation, subscribe for
the subscription shares and the company will issue the subscription
shares to the subscribers.
2.3 This agreement records the terms and conditions subject to which the
subscribers will subscribe for the subscription shares and the
company will issue the subscription shares to the subscribers.
3 SUSPENSIVE CONDITIONS
3.1 This agreement, in its entirety, is subject to the suspensive conditions
that -
3.1.1 the loan agreement is signed by the parties thereto;
3.1.2 the rental enterprise sale agreement is signed by the parties thereto;
3.1.3 the business sale agreement is signed by the parties thereto;
3.2 The suspensive conditions are stipulated for the benefit of the
subscribers, who shall jointly be entitled, in writing only, to waive
fulfillment of same or to extend the date by which they or any of them
is to be fulfilled.
3.3 If any of the suspensive conditions referred to in 3.1 is not fulfilled
or waived, then this agreement shall be of no further force or
effect -
3.3.1 no party hereto shall have any claim against the others arising out of
or in connection with this agreement; and
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3.3.2 to the extent that this agreement may have been partially
implemented, the parties shall be restored to the status
quo ante.
3.4 The parties undertake to forthwith do all things within their power and
to take all reasonable steps as expeditiously as possible in order
to ensure fulfilment of the suspensive conditions and to give effect to
the provisions of this 3.
4 SUBSCRIPTION FOR SHARES
4.1 On the effective date -
4.1.1 Century shall subscribe for the Century subscription shares, being 2
000 (two thousand) subscription shares at their par value of R1
(one rand) each plus a premium of R4 999 (four thousand nine hundred
and ninety nine rands) per subscription share (ie at a total
subscription price of R10 000 000 (ten million rands) in the
aggregate); and
4.1.2 the company shall allot and issue the subscription shares to the
subscriber,
4.2 On the transfer date -
4.2.1 COIL shall subscribe for the COIL subscription shares, being 1
900 subscription shares at their par value of R1 (one rand) each
plus a premium of R9 999 900 (nine million nine hundred and
ninety eight thousand rands) in total;
4.2.2 the company shall allot and issue the subscription shares to the
subscriber;
4.3 For the sake of clarity, it is recorded that COIL has, prior to
signature date, owned 100 ordinary shares in the company purchased
at par. After the transaction envisaged above COIL will own
2 000 (two thousand) ordinary shares and have paid R10 000 000
(ten million rands) for them in aggregate. Both COIL and Century
after all the transactions in clause 4 above will have equal
shareholding in the company.
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5 PAYMENT AND DELIVERY
5.1 The subscribers shall pay the subscription price to the company in
respect of their subscription shares on the effective date or the
transfer date, as the case may, be in immediately available funds
against delivery of the share certificates to the subscribers in
terms of 4.1.2 or 4.2.2, as the case may be.
5.2 The company shall issue and deliver the share certificates to the
subscribers on the effective date or the transfer date, as the
case may be.
6 RECONSTITUTION OF BOARD OF DIRECTORS
6.1 It is recorded that the board of directors of the company currently
comprises two nominees of COIL and one nominee of Century.
6.2 The parties shall procure that, on the effective date, a meeting of the
members of the company shall be held at Cape Town, at which meeting the
board of directors shall be reconstituted by the appointment of two new
directors, all of whom shall be nominated for appointment by
Century, so that the board of directors of the company, after
such reconstitution, shall consist of five members, three of whom will
be appointed by the Century, and two of whom will be appointed by COIL.
6.3 COIL hereby irrevocably undertake -
6.3.1 to vote in favour of the appointment of the two nominees of
Century referred to 6.2; and
6.3.2 to vote in favour of the removal of Century's nominees
and their replacement with other nominees, if and when
so requested by the Century;
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6.3.3 until the transfer date, to exercise their voting rights in
respect of the shares in the company held by them (and
to procure that all directors nominated by them to the
board of directors of the company shall similarly exercise
all their voting rights at meeting of the board of directors
of the company) in accordance with Century's
instructions and requirements from time to time, provided
that, save as may be specifically intended hereby, such
voting rights need not so be exercised in order to wilfully
frustrate any agreement between the company and a
third party.
6.4 The parties shall procure that, on the transfer date, a meeting of the
members of the company shall be held at Cape Town, at which meeting the
board of directors shall be reconstituted by the appointment of one
new director, who shall be nominated for appointment by COIL, so that
subject to 6.3 the board of directors of the company, after such
reconstitution, shall consist of six members, three of whom will be
appointed by Century and three of whom will be appointed by COIL.
6.4.1 Century hereby irrevocably undertakes to vote in favour of
(subject to 6.3 occurring)- -
6.4.2 the appointment of the additional nominee of COIL; and
6.4.3 the removal of the nominee of COIL and his replacement with
other nominee, if and when so requested by the COIL.
6.5 After the later of the effective date and the transfer date the
board of directors of the company will comprise of equal
representation by COIL and Century;
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7 REPRESENTATIONS AND WARRANTIES
7.1 It is recorded that (and this agreement is accordingly based thereon),
as at the signature date and the date that this agreement becomes
effective -
7.2.1 the company is duly incorporated in the Republic of South Africa
and carries on business in accordance with the certificate to
commence business issued in terms of the Companies Act, 1873;
7.2.2 no steps have been taken and no steps are pending or
threatened against the company in terms of section 73 of
the Companies Act, 1973;
7.2.3 the company has the necessary legal capacity to enter into and
perform its obligations under this agreement and has taken
all necessary corporate action to authorise the execution and
performance of this agreement;
7.2.4 in the execution of this agreement and the performance by the
company of its obligations hereunder, the company will not
contravene any law or regulation to which the company is
subject or any provision of its memorandum or articles of
association;
7.2.5 upon delivery of the share certificates to the subscriber in
accordance with this agreement, ownership of the subscription
shares will pass to the subscriber and the subscriber will
become the sole beneficial and registered owner of the
subscription shares;
7.2.6 the subscription shares will, when delivered to the subscriber
in accordance with the provisions of this agreement, be free
of any pledge, lien, hypothec, notarial bond or encumbrance
whatever and free of all other rights of retention or
pre-emption (save as may be expressly set out in the
company's articles of association or the written shareholders
agreement referred to in 2.1)
7.3 All matters referred to in this 7 are recorded as at the signature date
and as at the effective date.
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8 BREACH
8.1 Should the company, breach any of the terms or conditions of this
agreement and -
8.1.1 should such breach be incapable of being remedied; or
8.1.2 fail to remedy such breach within fourteen days after receipt of a
written notice from the subscriber requiring such breach to be
remedied, where such breach is indeed capable of being remedied,
then, without any prejudice to the other rights or remedies of the
subscriber in terms of this agreement or at law, the
subscribers shall be entitled to forthwith cancel this agreement
and the loan agreement, on written notice to the other parties to
such effect.
8.2 Should either Century or COIL breach any of the terms or conditions
of this agreement and thereafter fail to remedy such breach within
fourteen days after receipt of a written notice from the company
and/or the other of them ("the non-defaulting party") requiring such
breach to be remedied, then, without prejudice to the other rights
or remedies of the non-defaulting party in terms of this agreement
or at law, the non-defaulting party shall be entitled to
forthwith cancel this agreement and the loan agreement on written
notice to the other party to such effect.
8.3 Should the loan agreement and/or the rental enterprise sale agreement
and/or the business sale agreement be cancelled or terminated for
any reason whatsoever, then, without prejudice to any of its other
rights or remedies as a result thereof, the subscribers shall jointly
or severally be entitled (but not obliged) to terminate and cancel
(without incurring any liability on its part by doing so) this
agreement on written notice to such effect to the other parties.
8.4 Any such cancellation of this agreement by any of the parties shall
operate as between all of the parties and in respect of the entire
agreement and the provisions of 3.3.1 shall apply mutatis mutandis.
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9 DOMICILIUM AND NOTICES
9.1 The parties choose domicilia citandi et executandi ("damicilium") for
all purposes relating to this agreement, including the giving of
any notice, the payment of any sum, the serving of any
process, as follows -
9.1.1 the seller physical - 0 Xxxxxx Xxxxxx
Xxxxxxx
facsimile - 028-2141270
9.1.2 the purchaser physical - 0 Xxxxxx Xxxxxx
Xxxxxxx
facsimile - 000-0000 000
9.1.3 Century physical - c/o Werksmans
Attorneys
00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
facsimile - 011-454 3100
9.1.4 COIL physical - 0 Xxxxx Xxxxxx
Xxxxxxx
facsimile - 021-418 9288
9.1.5 Century inc. physical - 200- 000 Xxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx, XX
00000 XXX
facsimile - 000 000 000 9700
9.2 Any party shall be entitled from time to time, by giving written notice
to the others, to vary its physical domicilium to any other physical
address (not being a post office box or poste restante) within the
Republic of South Africa and to vary its facsimile domicilium to
any other facsimile number.
9.3 Any notice given or payment made by any party to another
("addressee") which is delivered by hand between the hours of and
17:00 on any business day to the addressee's physical domicilium for
the time being shall be deemed to have been received by the .
addressee at the time of delivery.
9.4 Any notice given by any party to another which is successfully
transmitted by facsimile to the addressee's facsimile domicilium for
the time being shall be deemed (unless the contrary is proved by the
addressee) to have been received by the addressee on the day
immediately succeeding the date of successful transmission thereof.
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9.5 This 9 shall not operate so as to invalidate the giving or receipt of
any written notice which is actually received by the addressee other
than by a method referred to in this 9.
9.6 Any notice in terms of or in connection with this agreement shall be
valid and effective only if in writing and if received or deemed to be
received by the addressee.
10 GENERAL
10.1 This agreement constitutes the sole record of the agreement between the
parties in relation to the subject matter hereof, no party shall be
bound by any express, tacit or implied term, representation,
warranty, promise or the like not recorded herein. This agreement
supersedes and replaces all prior commitments, undertakings or
representations, whether oral or written, between the parties in
respect of the subject matter hereof.
10.2 No addition to, variation, novation or agreed cancellation of any
provision of this agreement shall be binding upon the parties unless
reduced to writing and signed by or on behalf of the parties.
10.3 No indulgence or extension of time which any party may grant to any
other shall constitute a waiver of or, whether by estoppel or
otherwise, limit any of the existing or future rights of the grantor
in terms hereof, save in the event and to the extent that the grantor
has signed a written document expressly waiving or limiting
such right.
10.4 Without prejudice to any other provision of this agreement, any
successor-in-title, including any executor, heir, liquidator, judicial
manager, curator or trustee, of any party shall be bound by
this agreement.
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10.5 The signature by any party of a counterpart of this agreement shall be
as effective as if that party had signed the same document as all of
the other parties.
10.6 Century Inc. hereby undertakes to procure that Century will fulfil
its obligations to pay its portion of the subscription price to
the company in terms of 5.1.
Signed at CapeTown on Xxxxx 00, 0000
xxx Xxxxxxx Xxxxxxx Xxxxxx (Proprietary) Limited
/s/ Xxxxx Xxxxxx
who warrants that he is duly authorised hereto
Signed at CapeTown on March 31, 2000
for Caledon Casino Bid Company (Proprietary) Limited
/s/ Xxxx Xxxxxx
who warrants that he is duly authorised hereto
Signed at CapeTown on March 31, 2000
for Caledon Overberg Investments (Proprietary) Limited
/s/ Xxxx Xxxxxx
who warrants that he is duly authorised hereto
Signed at CapeTown on March 31, 2000
for Century Casinos Inc.
/s/ Xxxxx Xxxxxx
who warrants that he is duly authorised hereto
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