A G R E E M E N T
entered into between
SILVERSTAR DEVELOPMENT LIMITED
(Registration No. 1995/000369/06)
and
VERKRANS ONTWIKKELINGS MAATSKAPPY (PROPRIETARY) LIMITED
(Registration Xx. 0000/000000/00)
xxx
XXXXXXX XXXXXXX XXXXXX (PROPRIETARY) LIMITED
(Registration No. 1996/010501/07)
WHEREBY IT IS AGREED AS FOLLOWS :
1. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this agreement are for the purpose of
convenience and reference only and shall not be used in the interpretation
of nor modify nor amplify the terms of this agreement nor any clause
hereof. Unless a contrary intention clearly appears -
1.1. words importing -
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or
unincorporate) and the state and vice versa;
1.2. the following terms shall have the meanings assigned to them hereunder
and cognate expressions shall have corresponding meanings, namely -
1.2.1. "the/this agreement" means this sale of shares and claims
agreement as set out herein, together with all appendices
attached hereto;
1.2.2. "business day" means a day (other than a Saturday, Sunday or an
officially recognised public holiday) on which banks are
generally open for business in the Republic of South Africa;
1.2.3. "the claims" means all claims of whatsoever nature which the
seller may have against the company on the effective date;
1.2.4. "the company" means VERKRANS ONTWIKKELINGS MAATSKAPPY
(PROPRIETARY) LIMITED , Registration Number 1971/013858/07;
1.2.5. "the documents of title" means collectively -
1.2.5.1. original, current share certificates duly cancelled;
1.2.5.2. the share transfer forms in respect of the shares duly
signed and dated by the seller in favour of the purchaser;
and
1.2.5.3. original, new share certificates duly issued reflecting
the purchaser as the holder;
1.2.5.4. a resolution of the board of directors of the company
approving the sale of the shares as set out herein;
1.2.5.5. a written cession of the claims;
1.2.5.6. a written resignation of all of the directors, public
officer and all office holders of the company;
1.2.5.7. a written resignation of the auditors of the company;
1.2.5.8. all books and records pertaining to the company,
including the title deed under which certain immovable
property, being Portion 39 (a portion of Portion 6) of the
farm Xxxxxxxxxx Xx 000 XX, Xxxxxxx, is held;
1.2.6. "the effective date" means 1 December 2004;
1.2.7. "prime rate" means the publicly quoted basic rate of interest
per annum at which The Standard Bank of South Africa Limited
lends on unsecured overdraft in the private sector from time to
time, determined on a 365 (three hundred and sixty five) day year
factor irrespective of whether the year is a leap year and
compounded monthly in arrears (as certified by any manager of
such bank, whose appointment and/or authority it shall not be
necessary to prove);
1.2.8. "the purchase consideration" means an amount of R4 405 000,00
(four million four hundred and five thousand rand);
1.2.9. "the purchaser" means SILVERSTAR DEVELOPMENT LIMITED,
Registration Number 1995/000369/06;
1.2.10. "the seller" means CENTURY CASINOS AFRICA (PROPRIETARY)
LIMITED Registration Number 1996/010501/07;
1.2.11. "the shares" means 2 (two) ordinary shares with a par value of
R1,00 (one rand) each in the issued share capital of the company
and 100 (one hundred) preference shares with a par value of R1,00
(one rand) each;
1.3. any reference in this agreement to "date of signature hereof" shall be
read as meaning a reference to the date of the last signature of this
agreement;
1.4. any reference to an enactment is to that enactment as at the date of
signature hereof and as amended or re-enacted from time to time;
1.5. if any provision in a definition is a substantive provision conferring
rights or imposing obligations on any party, notwithstanding that it
is only in the definition clause, effect shall be given to it as if it
were a substantive provision in the body of the agreement;
1.6. when any number of days is prescribed in this agreement, same shall be
reckoned exclusively of the first and inclusively of the last day
unless the last day falls on a Saturday, Sunday or public holiday, in
which case the last day shall be the next succeeding day which is not
a Saturday, Sunday or public holiday;
1.7. where figures are referred to in numerals and in words, if there is
any conflict between the two, the words shall prevail;
1.8. expressions defined in this agreement shall bear the same meanings in
schedules or annexures to this agreement which do not themselves
contain their own definitions;
1.9. reference to day/s, month/s or year/s shall be construed as Gregorian
calendar day/s, month/s or year/s;
1.10.the use of any expression in this agreement covering a process
available under South African law such as a winding-up (without
limitation eiusdem generis) shall, if any of the parties to this
agreement is subject to the law of any other jurisdiction, be
construed as including any equivalent or analogous proceedings under
the law of such defined jurisdiction;
1.11.where any term is defined within the context of any particular clause
in this agreement, the term so defined, unless it is clear from the
clause in question that the term so defined has limited application to
the relevant clause, shall bear the meaning ascribed to it for all
purposes in terms of this agreement, notwithstanding that that term
has not been defined in this interpretation clause;
1.12.the expiration or termination of this agreement shall not affect such
of the provisions of this agreement as expressly provide that they
will operate after any such expiration or termination or which of
necessity must continue to have effect after such expiration or
termination, notwithstanding that the clauses themselves do not
expressly provide for this;
1.13.the rule of construction that a contract shall be interpreted against
the party responsible for the drafting or preparation of the contract,
shall not apply;
1.14.any reference in this agreement to a party shall, if such party is
liquidated or sequestrated, be applicable also to and binding upon
that party's liquidator or trustee, as the case may be.
2. PREAMBLE
2.1. The seller is the owner of the shares and the claims and has indicated
its willingness to dispose of the shares and the claims to the
purchaser.
2.2. The purchaser has indicated its willingness to acquire the shares and
the claims.
2.3. The parties therefore agree subject to the terms and conditions set
out herein.
3. SUSPENSIVE CONDITIONS
3.1. This agreement, in its entirety, is subject to the fulfilment of the
following suspensive conditions by no later than 1 December 2004,
namely that -
3.1.1. all relevant resolutions have been adopted by the seller for
the implementation of this agreement, specifically a resolution
of the board of directors of the seller as well as a resolution
in terms of s228 of the Companies Act, 1973 by the members of the
seller;
3.1.2. agreement has been reached relating to the repayment of a loan
by the purchaser to a Century group company in an amount of R5
559 500,00 (five million five hundred and fifty nine thousand
five hundred and rand).
3.2. The suspensive conditions set out in clause 3.1 are inserted for the
benefit of the purchaser who shall be entitled to waive compliance of
same or extend the date upon which same or any of them must be
fulfilled in writing.
3.3. The parties undertake that they will use their best endeavours to
procure the fulfilment of the suspensive conditions set out in clause
3.1.
3.4. Should any of the suspensive conditions set out in clause 3.1 not be
fulfilled or not be waived in writing by the purchaser on or before 1
December 2004, as the case may be -
3.4.1. this agreement shall be of no further force or effect;
3.4.2. no party shall have any claim against the other arising from
the conclusion of this agreement, save where a party has
deliberately frustrated the fulfilment of the suspensive
conditions, and the parties shall be restored to the status quo
ante.
4. SALE
4.1. The seller hereby sells the shares and the claims to the purchaser,
which purchases same, on the terms and conditions set out herein.
4.2. The purchase price for the shares and the claims shall be an amount
equal to R4 405 000,00 (four million four hundred and five thousand
rand) which shall be apportioned as the face value of the claims and
the balance to the shares, which amount shall be paid by the purchaser
to the seller on the effective date.
4.3. The obligation of the purchaser to discharge the purchase
consideration as envisaged in clause 4.1 shall be without the cost of
transfer of money and without deduction and/or set-off whatsoever.
4.4. To the extent that either party fails to pay any amount on due date in
full, such amount shall attract interest at the prime rate plus 3%
(three per cent) calculated from the due date until the actual date of
payment, calculated nominal annual and compounded monthly in arrears.
5. DELIVERY
On the effective date the parties shall meet at a convenient forum, at
which date -
5.1. the purchaser shall pay an amount of R4 405 000,00 (four million four
hundred and five thousand rand) in full discharge of its obligations
to pay the purchase consideration; and
5.2. the seller shall deliver the documents of title to the purchaser.
6. RISK AND BENEFIT
6.1. With effect from the effective date, all risk in and benefit attaching
to the shares and the claims shall vest in the purchaser.
6.2. It is specifically recorded, that the shares and the claims are sold
cum dividend in respect of any dividends that may be declared in
respect of the shares by the board of directors of the company up to
the effective date.
7. VOETSTOOTS
The seller warrants in favour of the purchaser that -
7.1. it is the registered and beneficial owner of the shares and the
claims;
7.2. on the effective date the purchaser shall become the sole and
exclusive owner of the shares and the claims;
7.3. the shares and the claims are not pledged, encumbered, the subject of
any notarial deed or otherwise and the seller is able to transfer
ownership in and to the shares and the claims to the purchaser;
7.4. the company will have the assets and liabilities as set out in the pro
forma balance sheet attached hereto as Annexure A and it will not have
any liabilities of whatsoever nature, whether contractual, otherwise
or whether contingent or otherwise;
7.5. no assets of the company, including the immovable property referred to
in clause 1.2.5.8, are encumbered, the subject of any pledge, lien,
bond or otherwise whatsoever;
7.6. the seller gives the other additional warranties relating to the
company as set out in Annexure B.
8. CONFIDENTIALITY AND PUBLICITY
Any information obtained by either party to this agreement in terms, or
arising from the implementation, of this agreement shall be treated as
confidential by the party and shall not be used, divulged or permitted to
be divulged to any person not being a party to this agreement, without the
prior written consent of the other party save that -
8.1. each party shall be entitled to disclose such information to such of
its employees (which shall include any of its directors) and/or
contractors who need to know for the purposes of this agreement.
Before revealing such information to any such employees and/or
contractors, it undertakes to procure that the employees and/or
contractors are aware of the confidential nature of the information
being made available to them;
8.2. any information which is required to be furnished by law or by
existing contract or by any stock exchange on which the shares of
either party to this agreement or its holding company are listed may
be so furnished;
8.3. either party shall be entitled (after consultation with the other
party so as to avoid embarrassment or prejudice to the extent
possible) to make such information available to its shareholders as
may be necessary to enable such shareholders to consider the value and
prospects of their shareholdings;
8.4. neither party shall be precluded from divulging any information to any
person who is negotiating with such party for the acquisition of an
interest in such party, provided that the person to whom any
disclosure is made in the aforesaid circumstances shall first have
undertaken in writing not to divulge such information to any other
person and to use it only for the purpose of evaluating the business;
8.5. no party shall be precluded from using or divulging such information
in order to pursue any legal remedy available to it.
9. DOMICILIUM CITANDI ET EXECUTANDI
9.1. The parties choose as their domicilia citandi et executandi for all
purposes under this agreement, whether in respect of court process,
notices or other documents or communications of whatsoever nature the
following addresses :
9.1.1. the seller:
Physical: x/x 0 Xxxxxx Xxxxxx
Xxxxxxx
0000
Attention: The Managing Director
Telefax: x0 000 000 0000
9.1.2. the purchaser:
Physical: x/x 00 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxx
Xxxxxxxx
0000
Telefax: + 27 86 672 6282
9.1.3. the company:
Physical: x/x 0 Xxxxxx Xxxxxx
Xxxxxxx
0000
Attention: The Managing Director
Telefax: x0 000 000 0000
9.2. Any notice or communication required or permitted to be given in terms
of this agreement shall be valid and effective only if in writing but
it shall be competent to give notice by telefax.
9.3. Either party may by notice to the other party change the physical
address chosen as its domicilium citandi et executandi to another
physical address in South Africa or its telefax number, provided that
the change shall become effective on the 10th business day from the
deemed receipt of the notice by the other party.
9.4. Any notice to a party -
9.4.1. sent by courier in a correctly addressed envelope to it at its
chosen address shall be deemed to have been received on the 3rd
business day after sending (unless the contrary is proved);
9.4.2. delivered by hand to a responsible person during ordinary
business hours at the physical address chosen as its domicilium
citandi et executandi shall be deemed to have been received on
the day of delivery; or
9.4.3. sent by telefax to its chosen telefax number stipulated in
clause 9.1, shall be deemed to have been received on the date of
despatch (unless the contrary is proved).
9.5. Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
10. REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants to the other that -
00.0.xx has full power and authority to execute, deliver and perform its
obligations under this agreement and no limitation under its power
will be exceeded as a result of it entering into this agreement;
10.2. this agreement is legal, valid and binding upon the parties;
10.3.subject to the provisions of clause 3, all actions, conditions and
things required to be taken, fulfilled or done (including the
obtaining of all necessary consents and authorisations) for its
entering into and performance of this agreement have been taken,
fulfilled and done.
11. WHOLE AGREEMENT, NO AMENDMENT
11.1.This agreement constitutes the whole agreement between the parties
relating to the subject matter hereof.
00.0.Xx amendment or consensual cancellation of this agreement or any
provision or term hereof or of any agreement, xxxx of exchange or
other document issued or executed pursuant to or in terms of this
agreement and no settlement of any disputes arising under this
agreement and no extension of time, waiver or relaxation or suspension
of any of the provisions or terms of this agreement or of any
agreement, xxxx of exchange or other document issued pursuant to or in
terms of this agreement shall be binding unless recorded in a written
document signed by the parties (or in the case of an extension of
time, waiver or relaxation or suspension, signed by the party granting
such extension, waiver or relaxation). Any such extension, waiver or
relaxation or suspension which is so given or made shall be strictly
construed as relating strictly to the matter in respect whereof it was
made or given.
00.0.Xx extension of time or waiver or relaxation of any of the provisions
or terms of this agreement or any agreement, xxxx of exchange or other
document issued or executed pursuant to or in terms of this agreement,
shall operate as an estoppel against any party in
respect of its rights under this agreement, nor shall it operate so as
to preclude such party thereafter from exercising its rights strictly
in accordance with this agreement.
00.0.Xx the extent permissible by law no party shall be bound by any
express or implied term, representation, warranty, promise or the like
not recorded herein, whether it induced the contract and/or whether it
was negligent or not.
11.5.This agreement may be signed in counterparts, including by way of
facsimile, each of which shall be deemed to be an original.
12. BREACH
Should any party breach any term and/or condition of this agreement and
fail to remedy such breach within a period of 14 (fourteen) business days
after receipt of written notification to such effect, the nondefaulting
party shall be entitled, without prejudice to its rights in terms of this
agreement or at law, to claim immediate specific performance or to cancel
this agreement, in either case without prejudice to its rights to claim
damages.
13. COSTS
13.1.Each party shall pay its own costs associated with the drafting and
implementation of this agreement.
13.2.The purchaser shall pay all stamp duty and related levies associated
with the transfer of the shares into the name of purchaser.
13.3.Any costs, including attorney and own client costs, incurred by
either party arising out of a breach by the other party of any of the
provisions of this agreement shall be borne by the party in breach.
SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
DATE PLACE WITNESS SIGNATURE
1. Xxxxx Xxxxxxx//s// For: SILVERSTAR
12/01/2004 Ormonde DEVELOPMENT LIMITED
2. Xxxxxxxxx Xxxxxxxxx//s// Xxxx Xx Xxxxx //s//
1. Xxxxx Xxxxxxx//s// For: VERKRANS
12/01/2004 Johannesburg ONTWIKKELINGS MAATSKAPPY
2. Xxxxxxxxx Xxxxxxxxx//s// PROPRIETARY) LIMITED
Xxxxxxxxx Xxxxxxx//s//
1. Xxxxx Xxxxxxx//s// For: CENTURY CASINOS A
12/01/2004 Johannesburg AFRICA (PROPRIETARY)
2. Xxxxxxxxx Xxxxxxxxx//s// LIMITED
Xxxxxxxxx Xxxxxxx//s//
ANNEXURE A
ANNEXURE B
1. In this annexure -
1.1. the "agreement" means the agreement to which this annexure is
attached;
1.2. the "Act" means the Companies Xxx 0000 as amended;
1.3. the seller ("the warrantor") shall be deemed to have knowledge of any
facts or circumstances of which any servant of the company has
knowledge;
1.4. to the extent that at signature of the agreement, the effective date
may already have passed, and accordingly the use of any tense may be
inappropriate, the warranties shall be read in the appropriate tense.
1.5. the warranties will be qualified by any disclosure made by the
warrantor in the attached disclosure schedule.
2. On the signature date and the effective date -
2.1. the company will be regularly incorporated as a private company with
limited liability according to the laws of the Republic of South
Africa;
2.2. no steps will have been taken in respect of the company in terms of
section 73 of the Act;
2.3. the authorised share capital of the company will be _______________
divided into 3 000 (three thousand) ordinary shares of R1,00 (one
rand) each and the shares sold in terms of this agreement represent
the entire issued share capital of the company;
2.4. all the issued shares in the capital of the company will be of one
class and the issued shares will rank pari passu with each other;
2.5. the company will not be under any obligation (whether contingently
upon the exercise of any right or otherwise) to increase or reduce or
otherwise alter its authorised or issued share capital;
2.6. no person will have any right (including any option or right of first
refusal) to subscribe for any of the shares or the debentures or to
take up or acquire any of the unissued shares in the capital of the
company, present or future;
2.7. no resolution will have been passed, nor will the company be obliged,
to alter any of the rights attaching to any of the shares in the share
capital of the company or to alter the memorandum or articles of
association of the company or to create or to issue any debentures;
2.8. no person will have any right to obtain an order for the rectification
of the register of members of the company;
2.9. the memorandum and articles of association of the company will be
those of which a copyhas been submitted to the purchaser, without any
amendments;
2.10.the company's books and records will have been properly maintained
according to law and will accurately reflect, in accordance with
generally accepted and sound accounting principles and standards, all
of the transactions entered into by the company or to which it is a
party;
2.11.the company will have complied with all legislation, enactments,
proclamations, ordinances, by-laws and regulations which affect it
and, in particular, it will have complied with all the provisions of
the legislation affecting, regulating or providing for income or other
tax or duties and the employment of labour and also the provisions of
the Act;
2.12.the company will have all such licences, consents, permits and other
authorities prescribed by law for the lawful conduct of its business
in the manner in which it is presently conducted. The warrantor is not
aware of any facts or circumstances which may result in the
cancellation or material alteration or non-renewal of any such
licences, consents, permits, approvals or other authorities;
2.13.the company will have maintained registers in accordance with
generally accepted and sound accounting practice and/or the provisions
of the Act;
0.00.xx person will have the right (including any option or right of first
refusal) to purchase any of the assets of the company;
0.00.xxxx as disclosed to the purchaser in writing in terms of a
disclosure schedule, the company will not be liable, whether
contingently or otherwise, and whether as surety, co-principal debtor,
guarantor or indemnitor, for the liabilities of any third party;
2.16.the company will not have any liabilities whatsoever, whether from a
tax nature or otherwise;
2.17. the company will not be in default of any of its obligations;
2.18.all returns, computations, notices and information which are or have
been required to be made or given by the company for taxation purposes
-
2.18.1. have been made or given within the requisite periods required
by law and on the proper basis and are up to date and correct;
2.18.2. none of them is or is likely to be the subject of any dispute
with a revenue authority;
2.18.3. none will give rise to any disallowance of relief, allowance,
deduction or credit or assessment (including any claim for any
penalty, interest, surcharge or fine).
0.00.xx queries have been addressed to the company or its public officer by
any tax official nor has the company lodged any tax objections, which
have not been fully disposed of.
3. As at the signature date the company is not engaged in any litigation,
income tax appeals, arbitration or criminal proceedings. Having made all
reasonable enquiries, the warrantor is not aware of any facts, matters or
circumstances which may give rise to any such litigation, income tax
appeals, arbitration or criminal proceedings.
4. This transaction does not constitute a breach of any of the company's
contractual obligations, nor will it entitle any person to terminate or
vary the terms of any contract to which the company is a party.
5. As at the signature date and the effective date the warrantor has disclosed
to the purchaser all facts and circumstances which they bona fide believe
to be material to this transaction and which would be material or would be
reasonably likely to be material to a purchaser of the shares and the
purchase price payable in respect thereof.
6. Should there be any undisclosed liability of the company, the seller shall
make good any such amount on demand.
7. The company will not have any employees on the effective date.
8. With reference to the movable property referred to in clause 1.2.5.8 -
8.1. the company is the beneficial owner of the property;
8.2. the company has not entered into any agreement granting any third
party or otherwise a right of occupation or use of the property;
8.3. no agreements have been entered into by the company whereby any
restrictive conditions or servitudes or usufructs attached to the
property other than those presently registered in the relevant Deeds
Office;
8.4. the seller is not aware of any facts, matters or circumstances which
may give rise to -
8.4.1. any change in the zoning of the property other than in respect
of the proposed casino hotel development;
8.4.2. any expropriation of the property;
8.4.3. any current or potential defects to the title deed.
TABLE OF CONTENTS
CLAUSE NUMBER AND DESCRIPTION PAGE
1. INTERPRETATION AND PRELIMINARY........................ 2
2. PREAMBLE...............................................6
3. SUSPENSIVE CONDITIONS................................. 6
4. SALE...................................................7
5. DELIVERY...............................................8
6. RISK ANDBENEFIT........................................8
7. VOETSTOOTS.............................................8
8. CONFIDENTIALITY AND PUBLICITY......................... 9
9. DOMICILIUM CITANDI ET EXECUTANDI..................... 10
10. REPRESENTATIONS AND WARRANTIES...................... 11
11. WHOLE AGREEMENT, NO AMENDMENT....................... 12
12. BREACH...............................................13
13. COSTS................................................13
ANNEXURE A................................................1
ANNEXURE B................................................1
