SUBSCRIPTION AGREEMENT
TRANS WORLD GAMING CORP.
TWG INTERNATIONAL US CORPORATION
TWG FINANCE CORP.
This is a SUBSCRIPTION AGREEMENT (the "Agreement"), dated as of March
16, 1998, by and among TRANS WORLD GAMING CORP., a Nevada Corporation (the
"Parent"), TWG INTERNATIONAL U.S. CORPORATION, a Nevada corporation and a
wholly-owned subsidiary of Parent (the "Operating Subsidiary"), TWG Finance
Corp., a Delaware orporation and a wholly-owned subsidiary of the Parent (the
"Finance Subsidiary" which, together with the Operating Subsidiary shall be
referred to herein as the "Subsidiaries") and the undersigned (the
"Subscriber"). The Parent and Subsidiaries shall be referred to herein as
the "Company".
BACKGROUND
1. The Units. The Parent and Subsidiaries desire to sell a unit (the
"Unit"), such Unit consisting of (i) a 12% Senior Secured Note due [DUE DATE]
of the Parent and the Subsidiaries (the "Notes") and (ii) warrants to
purchase shares of Common Stock of the Parent (the "Warrants"). The
Subscriber desires to purchase the Unit. The Unit shall be comprised of a
Note in the principal amount of, and a Warrant as to the number of shares,
both of which are set forth opposite the Subscriber's name on Exhibit "A"
attached hereto. The term "Units" shall refer to the total of each unit
purchased pursuant to this offering. The total subscription shall be between
$15,000,000 and $17,000,000.
2. The Acquisition. The Parent has formed the Operating Subsidiary to
acquire (the "Acquisition") the equity interest in entities which own two
operating casinos and real property on which to build a third casino
(collectively the "Czech Casinos"), all in the Czech Republic as set forth
in that certain Confidential Private Placement Summary, as amended by the
Supplement thereto dated March 1998 (the "Summary") dated February 1998. The
terms of the Acquisition are evidenced by that certain 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
(the "Acquisition Agreement"). Certain proceeds from the sale of the Units
will be used to fund the purchase price of the Acquisition and the expenses
related thereto (the "Acquisition Price"). The Closing of this Agreement and
of the Acquisition Agreement shall be simultaneous.
3. The Finance Company. The Parent has formed the Finance Subsidiary
for the sole purpose of obtaining an enforceable pledge of a security
interest in certain entities acquired or formed pursuant to the Acquisition.
At the Closing, sums advanced pursuant to the Escrow Agreement to fund the
purchase price of the Units shall be deemed advanced to the Finance
Subsidiary and then be deemed advanced by the Finance Subsidiary to the
Operating Subsidiary. The Note evidencing this advance from the Finance
Subsidiary to the Operating Subsidiary (the "Financing Note") shall be deemed
issued at the Closing simultaneously with the Closing of this Agreement and
the Acquisition Agreement. The Financing Note shall be secured as set forth
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herein. The Financing Note shall be pledged by the Finance Subsidiary to
secure repayment of the Notes.
4. Funding. In order to effectuate the closing of the Acquisition
Agreement pursuant to its terms, cash representing the purchase price of all
of the Units must be deposited by no later than March 17, 1998 with U.S.
Trust Company of Texas, N.A. (the "Escrow Agent") pursuant to the terms of
that certain Escrow Agreement attached hereto as Exhibit "B" and by this
reference incorporated herein (the "Escrow Agreement"). Sums adequate to
close the Acquisition Agreement will then be transferred to an escrow account
controlled by the Escrow Agent (the "Acquisition Funds"). Upon satisfaction
of the terms and conditions set forth in the Escrow Agreement, on March 30,
1998, the Acquisition Funds will be transferred from the Escrow Agent to an
account in trust in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Solicitors, London, England
(the "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Account"), counsel for the Sellers of the Czech Casino
entities (the "Sellers"), to be released sequentially while in escrow to the
Finance Subsidiary, the Operating Subsidiary and the Sellers, simultaneously
upon the closing of the Acquisition Agreement on March 31, 1998. No interest
shall be credited to the Subscriber for the period of time the funds reside
in the escrow account unless such funds are disbursed to the Subscriber in
accordance with the terms of the Escrow Agreement. The remaining sums
representing the purchase price of the Units shall be disbursed as set forth
in the Escrow Agreement.
TERMS
Intending to be legally bound, in consideration of the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. SALE AND PURCHASE. Subject to the terms and conditions set forth
herein and in the Escrow Agreement, at the Closing (as defined in Section 2,
below) the Company will issue and sell to the Subscriber a Note in the
principal amount, and the Parent will issue and sell to the Subscriber the
number of Warrants, set forth opposite the Subscriber's name on Exhibit "A"
hereto.
2. THE CLOSING.
(a) The purchase and sale of the Units will take place at a closing
(the "Closing") to occur simultaneously at 11:00 a.m., Prague, Czech Republic
time, on Tuesday, March 31, 1998 (the "Closing Date") at the office of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, P.A., Prague, Czech Republic and at the offices of White & Case,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇. The date and time of
Closing is referred to herein as the "Closing Date."
(b) Subject to the terms and conditions set forth herein, at the
Closing the purchase price for the Units shall be paid in full in immediately
available funds pursuant to the terms of paragraph 8 below.
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(c) Subject to the terms and conditions set forth herein, at the
Closing the Parent and the Subsidiaries shall deliver to the Subscriber
against payment of the purchase price therefor, the Note and Warrant
registered in such name or names as shall be designated by the Subscriber.
Delivery of the Note and Warrant dated March 31, 1998 (to accrue interest
from March 17, 1998) to the Purchasers' Counsel, as that term is defined in
Section 8, shall be deemed delivery to the Subscriber. This subscription may
be accepted or rejected in whole or in part in the sole and absolute
discretion of Parent and Parent may allocate to the Subscriber a lower dollar
amount than that for which the Subscriber has subscribed hereby. The
offering conducted by the Parent hereby may be cancelled or terminated by
Parent at any time, in Parent's sole discretion, without liability on the
part of Parent or Subsidiaries and all funds obtained from Subscriber shall
be returned to Subscribers with interest earned, if any.
(d) If at the Closing the Parent and the Subsidiaries shall fail to
tender such Unit to the Subscriber as provided above in this Section 2 or if
any of the conditions specified in Section 8 below shall not have been
fulfilled to the Subscriber's satisfaction, Subscriber shall, at its
election, be relieved of any further obligations under this Agreement,
without thereby waiving any rights it may have by reason of such failure or
such non-fulfillment.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As of the Closing
Date, the Company represents and warrants to the Subscriber that:
(a) ORGANIZATION, STANDING, ETC. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Nevada and has all requisite corporate power and authority to own its
assets and carry on its business as presently conducted. The Operating
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and has all requisite
corporate power and authority to own its assets and to carry on its business
as presently conducted. The Financing Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the state
of Delaware and has all requisite corporate power and authority to own its
assets and to carry on its business as presently conducted. Parent and
Subsidiaries have all requisite corporate power and authority to (i)
execute, deliver, and perform their obligations under this Agreement, the
Escrow Agreement, the Indenture, the Notes, the Warrants, the Finance Note
and all other agreements and instruments executed and delivered pursuant to
or in connection with this Agreement, the Indenture and the Finance Note
(collectively the "Operative Agreements"), and (ii) issue the Units.
(b) AUTHORIZATION AND EXECUTION; UNITS VALIDLY ISSUED. The execution,
delivery and performance by Parent and Subsidiaries of this Agreement and the
other Operative Agreements, and the issuance of the Unit hereunder have been
duly and validly authorized by Parent and Subsidiaries. This Agreement and
the other Operative Agreements have been duly executed and delivered by
Parent and Subsidiaries and constitute valid and binding agreements of Parent
and Subsidiaries enforceable against Parent and Subsidiaries in accordance
with their respective terms. Upon the payment of the purchase price for the
Units and the delivery of documents evidencing the Units, the Notes will be
valid and binding obligations of the Parent and Subsidiaries and the shares
of common stock issuable pursuant to the Warrants will upon issuance be duly
and validly
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issued and outstanding, fully paid and nonassessable (other than the exercise
price of the Warrants).
(c) CONTRAVENTION. Assuming that the holders of the 1999 Notes (as
defined herein) restructure such 1999 Notes as a condition to the Closing the
execution, delivery and performance of this Agreement and the other Operative
Agreements and the consummation of the transactions contemplated thereby do
not contravene or constitute a default under or violate (i) any provision of
applicable law or regulation the violation of which would have a material
adverse effect on Parent or Subsidiaries or on the Units, (ii) the Articles
of Incorporation and Bylaws of Parent or Subsidiaries, or (iii) any
agreements, judgment, injunction, order, decree or other instrument binding
upon Parent or Subsidiaries or any of their assets or properties, the
violation of which would have a material adverse effect on Parent or
Subsidiaries or on the Units.
For purposes of this Agreement, a "material adverse effect" means a
material adverse effect on (a) the business, operations, property or
condition (financial or otherwise) of Parent and Subsidiaries, (b) the
ability of the Parent or Subsidiaries to perform their respective obligations
under this Agreement, or any other Operative Agreement to which any of them
is a party, or (c) the validity, enforceability, perfection or priority of
this Agreement or the rights or remedies of the Trustee or the holder of the
Notes.
(d) LITIGATION, PROCEEDINGS, DEFAULT. Other than (i) a lawsuit
commenced by the Borrower against the State of Louisiana, Docket No.
434,700-D, pending in East Baton Rouge Parish; (ii) MONARCH CASINOS, INC. OF
LOUISIANA ET. AL. V. TRANS WORLD GAMING CORP., 15th Judicial District Court,
Case No. 97-5037, division B, Lafayette Parish, Louisiana; (iii) a petition
for Concursus regarding the sub-lease with Prime Properties, Inc. in the 15th
Judicial District Court, Lafayette Parish, Louisiana, Case No. 97-6174-D;
(iv) PRIME PROPERTIES, INC. V. NATIONAL AUTO/TRUCK STOPS, INC., U.S. District
Court, Western District of Louisiana, Case No. CV98-0076-L-O regarding the
claim of Prime Properties, Inc. of the breach of its franchise agreement with
the defendant therein; (v) Voluntary Petition in Bankruptcy of Prime
Properties, Inc. in the U.S Bankruptcy Court for the Western District of
Louisiana, Case No. 98BK-50087, there is no action, suit, investigation or
proceeding pending against, or to the knowledge of the Parent or
Subsidiaries, threatened against or affecting, Parent or Subsidiaries or
their assets or any of the Units before or by any court or arbitrator or any
governmental body, agency, department, instrumentality or official which
would have a material adverse effect on Parent or Subsidiaries or their
assets or any of the Units. Parent and Subsidiaries are not in violation of
their Articles of Incorporation or Bylaws, and Parent and Subsidiaries are
not in violation of or in default under any provision of any applicable law
or regulation or of any agreement, judgment, injunction, order, decree or
other instrument binding upon Parent or Subsidiaries which violation or
default (i) would effect the validity of this Agreement, the Units, or any
other Operative Agreement, or (ii) would impair the ability of Parent or
Subsidiaries to perform in any material respect the obligations which they
have under this Agreement or any other Operative Agreement.
(e) GOVERNMENTAL REGULATIONS. Except as required pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and State securities
laws, Parent and Subsidiaries are not subject to any foreign,
4
Federal or State law or regulation limiting their ability to enter into this
Agreement or any other Operative Agreement, to issue the Units or to perform
their obligations required thereby.
(f) CAPITALIZATION OF PARENT. Parent's authorized capital stock
consists of 50,000,000 shares of Parent Common Stock and 2,000,000 shares of
Parent Preferred Stock. As of the date of this Agreement, 3,044,286 shares
of Parent Common Stock and no shares of Parent Preferred Stock were issued
and outstanding. All outstanding shares have been duly authorized, validly
issued and are fully paid and nonassessable. To the best of its knowledge,
the Company has not violated any applicable federal or state securities laws
in connection with the offer, sale and issuance of any of its capital stock.
As of the Closing Date, there will be no rights, subscriptions, warrants,
options, conversion rights, or agreements of any kind outstanding to purchase
from the Parent, or otherwise require the Parent to issue, any shares of
capital stock of the Parent or securities or obligations of any kind
convertible into or exchangeable for any shares of capital stock of Parent
and the Parent will not be subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
capital stock, except for the Warrants and as set forth on Exhibit "C".
Except for certain warrants outstanding owned by ▇▇. ▇▇▇▇▇ as set forth on
Exhibit "C", neither the issuance of the Warrants, nor the issuance of the
Parent Common Stock upon exercise of the Warrants, will result in an
anti-dilution adjustment or otherwise increase the number of shares of Parent
Common Stock issuable upon conversion or execution of any of the Warrants or
Options set forth on Exhibit "C". The Parent Common Stock underlying the
Warrants has been duly reserved for issuance upon exercise of the Warrants
and, when so issued against payment of the Warrant exercise price therefore,
will be duly authorized, validly issued and outstanding, fully paid and
nonassessable. Neither the issuance and delivery of the Warrants nor the
issuance and delivery of the Parent Common Stock upon exercise of the
Warrants is subject to any preemptive right of any stockholder of the Parent
or to any right of first refusal or other similar right in favor of any
person.
(g) DEBT OF SUBSIDIARY. The holders of the Notes will have a first
lien and security interest in the stock of the Subsidiaries and the Finance
Note. The Finance Note shall be secured by a sixty-six percent (66%) interest
in a certain acquired and subsequently acquired or created direct
subsidiaries of TWG International to the extent permissible under applicable
law and regulation.
(h) OWNERSHIP OF PROPERTY. Each of the Parent and Subsidiaries has
good record title in fee simple to, or a valid and subsisting leasehold
interest in, all its real property, and good title to all of its other
property, in each case which is necessary or useful in the conduct of its
business. Each lease agreement under which either such entity holds an
interest in leased property is in full force and effect, to the best of the
Parent's knowledge, other than a lease by the Parent's Louisiana subsidiary
of a casino property.
(i) DOCUMENTATION; NO MATERIAL MISSTATEMENTS. All of the necessary
documents related to the consummation of this transaction which have been
requested by the Subscriber to be provided have been provided by Parent and
Subsidiaries to the Subscriber and are true, correct and complete in all
material respects. No written representation or warranty made by the Parent
and Subsidiaries in or pursuant to this Agreement and the Summary contains
any untrue statement of
5
a material fact or omits to state any material fact necessary to make such
representation or warranty not misleading to a purchaser of securities from
Parent and Subsidiaries.
(j) PRIVATE SALE; VOTING AGREEMENTS. Subject to the accuracy of the
Subscriber's representations contained herein, neither the offer, sale and
issuance of the Notes and the Warrants hereunder nor the issuance and
delivery of any Common Stock upon the exercise of any Warrants requires
registration under the Securities Act or any state securities law. To the
best of the Parent's knowledge, there are no agreements of any shareholders
of the Parent with respect to the voting or transfer of shares of its capital
stock.
(k) ACQUISITION AGREEMENT. The Parent has delivered to Purchaser's
Counsel a true and complete copy of the Acquisition Agreement (including each
amendment, consent or waiver in respect thereof). Such Agreement is in full
force and effect, and is the valid, binding and enforceable obligation of the
Parent, and to the best of Parent's knowledge, of the parties thereto.
Neither the Parent, nor, to the best of Parent's knowledge, the other parties
to the Acquisition Agreement, are in breach of their obligations thereunder
and to the best of the Parent's knowledge, no such breach is anticipated or
threatened.
(l) LICENSES, COMPLIANCE WITH LAW, OTHER AGREEMENTS, ETC. The Parent
and Subsidiaries have, and upon completion of the Acquisition of the Czech
Casinos will have, all necessary franchises, permits, gaming and other
licenses and other rights to allow it to conduct its business as presently
conducted and as proposed to be conducted upon acquisition of the Czech
Casinos. The Parent's and Subsidiaries businesses have been conducted in
compliance with all federal, state and local laws, ordinances, rules and
regulations except where such violations, defaults or noncompliance would not
have a material adverse effect on the Parent or the Subsidiaries.
(m) EMPLOYEES. Set forth on Schedule 3(m) is a list and summary
description of all agreements between the Parent and any employee thereof.
(n) NO UNDISCLOSED LIABILITIES. Except as forth on Schedule 3(n), the
Parent has no indebtedness, liabilities or obligations (whether absolute or
contingent, liquidated or unliquidated, or due or to become due) except (i)
as and to the extent of the amounts reflected or reserved against on the most
recent Form 10-QSB of the Parent filed with the Securities and Exchange
Commission, and (ii) indebtedness, liabilities and obligations incurred in
the ordinary course of business of the Parent and the Subsidiaries since the
date thereof.
(o) AFFILIATE TRANSACTIONS. Except as set forth on Schedule 3(o),
Parent and Subsidiaries have not entered into any agreement, arrangement or
transaction with any officer, director, shareholder or other affiliate within
the past twelve months, and none of the such persons or entities own property
or rights, tangible or intangible, which are used in the Parent's or
Subsidiaries business.
(p) TAXES. The Parent and Subsidiaries have prepared and filed all tax
returns, including information returns, declarations, reports estimates and
statements (collectively, "Tax
6
Returns"), required to be filed by it under any United States federal, state
or local law or any foreign law, which Tax Returns are true, correct and
complete. The Parent and Subsidiaries have paid or made provision for the
payment of all taxes, charges, fees, levies or other assessments, including
all net income, gross income, gross receipts, gaming, sales, use, ad valorem,
transfer, franchise, profits, license, withholding, payroll, employment,
excise, estimated, severance, stamp, occupation, property or other taxes
fees, assessments or charges, together with any interest and any penalties or
additional amounts thereon (collectively "Taxes"), that are due or claimed to
be due from it by any authority. There are no liens for any such Taxes upon
any assets, tangible or intangible, of the Parent or Subsidiaries. The
reserves for Taxes reflected on the most recent balance sheet of the Parent
in the most recent Form 10-QSB are sufficient for payment of all unpaid Taxes
(whether or not currently disputed) incurred with respect to the periods
ended on the date thereof and for all periods ended prior to such date.
There are no pending claims, disputes or questions relating to, or claims
for, Taxes of the either the Parent or Subsidiaries. Neither the Parent nor
the Subsidiaries have been granted any extension of the period of limitations
applicable to any claim for Taxes.
(q) All information regarding the status of the Subscriber shall be
kept strictly confidential, except where disclosure is required by applicable
law and regulation or by order of a court of competent jurisdiction.
(r) Parent and Subsidiaries shall use the proceeds only as set forth in
the Summary, unless set forth to the contrary in this Agreement or the Escrow
Agreement.
(s) Neither Parent nor Subsidiaries is an "investment company" under
the Investment Company Act of 1940.
4. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber
hereby represents and warrants to and covenants with the Company and to each
director, officer and, controlling person of the Company as follows:
(a) GENERAL.
(i) The Subscriber was not organized for the specific purpose of
acquiring the Unit.
(ii) The Subscriber has all requisite legal power and
authority to purchase and own the Unit under applicable state and federal law
and regulation. This Agreement has been duly authorized by all necessary
action on the part of the Subscriber, has been duly executed and delivered by
an authorized officer or representative of the Subscriber, and is a legal,
valid and binding obligation of the undersigned enforceable in accordance
with its terms, except that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application relating to or affecting the rights and remedies of creditors and
by general equitable principles, regardless of whether such enforceability is
considered in a proceeding in law or in equity. The Subscriber has delivered
herewith the full purchase price for the Unit subscribed.
7
(b) INFORMATION CONCERNING THE COMPANY.
(i) The Subscriber acknowledges receipt of the Summary, is
familiar with the business and financial condition, properties, operations,
risks and prospects of the Company and, at a reasonable time prior to the
execution of this Subscription Agreement, has been afforded the opportunity
to ask questions of and received satisfactory answers from the Company's
officers and directors, or other persons acting on the Company's behalf,
concerning the business and financial condition, properties, operations,
risks and prospects of the Company and concerning the terms and conditions of
the offering of the Unit and has asked such questions as it desired to ask
and all such questions have been answered to the full satisfaction of the
Subscriber. The Subscriber has received no other offering literature,
information or advertisements relating to the Units other than the Summary.
(ii) The Subscriber understands that, unless the Subscriber
notifies the Company in writing to the contrary before the Closing, all the
representations and warranties contained in this Subscription Agreement will
be deemed to have been reaffirmed and confirmed as of the Closing Date,
taking into account all information received by the Subscriber.
(iii) The Subscriber understands that the purchase of the
Unit involves various risks, including, but not limited to, those outlined in
this Subscription Agreement and the Summary.
(iv) The Subscriber is relying solely on the information
contained in the Summary and in this Subscription Agreement and the answers
to the questions with respect thereto furnished to the Subscriber by the
Company. No representations or warranties have been made to the Subscriber by
the Company other than as set forth in this Agreement or as to the tax
consequences of this investment, or as to profits, losses, return on
investment, or cash flow which may be received or sustained as a result of
this investment, other than those contained herein.
(v) All documents, records and books pertaining to a
proposed investment in the Unit which the Subscriber has requested have been
made available to the Subscriber.
(vi) The Units have not been registered under the Securities
Act of 1933, as amended, or the securities acts of any state and no federal
or state agency has made any finding or determination as to the fairness of
the Offering of the Units, or any recommendation or endorsement of the
Offering or the Units.
(vii) The forward looking statements and projections made by
the Company in the Summary were intended for illustration purposes only and
no assurances were given that actual results will correspond with the results
presented therein.
(c) STATUS OF THE SUBSCRIBER.
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(i) The Subscriber is in a financial position to hold the
Notes until maturity and is able to bear the economic risk and withstand a
complete loss of investment in the Unit.
(ii) The Subscriber has such knowledge and experience in
financial and business matters that the Subscriber is capable of evaluating
the merits and risks of the prospective investment in the Unit and has the
net worth to undertake such risks.
(iii) The Subscriber has obtained, to the extent the Subscriber
deems necessary, the Subscriber's own personal professional advice with
respect to the risks inherent in the investment in the Unit, and the
suitability of the investment in the Unit in light of the Subscriber's
financial condition and investment needs.
(iv) The Subscriber believes that the investment in the Unit
is suitable for the Subscriber based upon the Subscriber's investment
objectives and financial needs, and the Subscriber has adequate means
providing for the Subscriber's current financial needs and has no need for
liquidity of investment with respect to the Unit.
(v) The Subscriber realizes that (i) the purchase of the Unit
is a long-term investment; (ii) the Subscriber must bear the economic risk of
investment until the Notes mature and because the Notes have not been
registered under the Securities Act, the Notes cannot be sold unless they are
subsequently registered under the Act or an exemption from such registration
is available; and (iii) there is presently no public market for the Notes.
It is not anticipated that a public market will develop and the Subscriber
may not be able to liquidate the Subscriber's investment in the event of an
emergency or otherwise or pledge the Notes as collateral security for loans.
(vi) The Subscriber acknowledges that the Unit is being
purchased for the Subscriber's own account and for investment and without the
intention of reselling or redistributing the same, and that the Subscriber
made no agreement with others regarding the sale, transfer or disposition of
any of the Unit.
(vii) The Subscriber has no agreements (written or oral),
understandings or commitments with any other investor subscribing for Unit.
(viii) The Subscriber represents that the Subscriber is (CHECK
EACH CATEGORY OF "ACCREDITED INVESTOR" BELOW, IF ANY, WHICH IS APPLICABLE TO
THE SUBSCRIBER):
() (A) a natural person whose individual net worth, or
joint net worth with that person's spouse, at the time of his purchase
exceeds $1,000,000;
() (B) a natural person who had an individual income in
excess of $200,000 in each of the two most recent years or joint income with
that person's spouse in excess
9
of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
() (C) a bank as defined in Section 3(a)(2) of the
Securities Act or a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its
individual or fiduciary capacity; a broker or dealer registered pursuant to
Section 15 of the Exchange Act; an insurance company as defined in Section
2(13) of the Securities Act; an investment company registered under the
Investment Company Act of 1940 or a business development company as defined
in Section 2(a)(48) of that Act; a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; a plan established and maintained by a
state, its political subdivisions, or any agency or instrumentality of a
state or its political subdivisions, for the benefit of its employees if such
plan has total assets in excess of $5,000,000; or an employee benefit plan
within the meaning of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary, as defined
in Section 3(21) of ERISA, which fiduciary is either a bank, savings and loan
association, insurance company or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that are
Accredited Investors (as listed in categories (A)-(G));
() (D) a private business development company as defined in
Section 202(a)(22) of the Investment Advisors Act of 1940;
() (E) an organization described in Section 501(c)(3) of
the Internal Revenue Code, a corporation, business trust, or a partnership,
with total assets in excess of $5,000,000, and which was not formed for the
specific purpose of acquiring the Unit;
() (F) a trust, with total assets in excess of $5,000,000
not formed for the specific purpose of acquiring the Unit whose purchase is
directed by a person who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in Unit;
() (G) an entity in which all of the equity owners are
"Accredited Investors" (as listed in categories (A)-(F)); or
() (H) The Subscriber is a "qualified institutional buyer"
as defined by the Act under Rule 144A(a)(1); or
() (I) The Subscriber is resident in a country other than
the United States of America and does not intend to sell the Unit, and will
not sell the Unit, to any resident of the United States of America for at
least one (1) year after the Closing Date.
(ix) The statements made by the Subscriber herein are true and
correct and are confirmed hereby, and the Company shall be entitled to rely
thereon.
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(x) The Subscriber agrees to furnish any additional
information requested to assure compliance with applicable federal and state
securities laws in connection with the purchase and sale of the Unit.
(d) RESTRICTIONS ON TRANSFER OR SALE OF THE UNITS.
(i) The Subscriber is acquiring the Unit described solely for
the Subscriber's own beneficial account, for investment purposes, and not
with a view to, or for resale in connection with, any distribution of the
Unit. The Subscriber understands that the offer and the sale of the Units
have not been registered under the Securities Act or any state securities law
by reason of specific exemptions under the provisions thereof which depend in
part upon the investment intent of the Subscriber and of the other
representations made by the Subscriber in this Subscription Agreement. The
Subscriber understands that the Parent is relying upon the representations,
covenants and agreements contained in this Subscription Agreement (and any
supplemental information) for the purposes of determining whether this
transaction meets the requirements for such exemptions.
(ii) THE SUBSCRIBER UNDERSTANDS THAT THE UNITS ARE "RESTRICTED
SECURITIES" UNDER APPLICABLE FEDERAL SECURITIES LAWS AND THAT THE SECURITIES
ACT AND THE RULES OF THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") PROVIDE, IN SUBSTANCE, THAT THE SUBSCRIBER MAY DISPOSE OF THE
UNIT ONLY PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR AN EXEMPTION THEREFROM, AND THE SUBSCRIBER UNDERSTANDS THAT
THE PARENT HAS NO OBLIGATION OR INTENTION TO REGISTER THE NOTES OR WARRANTS
PURCHASED BY THE SUBSCRIBER HEREUNDER OR TO TAKE ACTION SO AS TO PERMIT SALES
PURSUANT TO THE SECURITIES ACT (INCLUDING RULE 144 THEREUNDER). AS A
CONSEQUENCE, THE SUBSCRIBER UNDERSTANDS THAT THERE IS NO PUBLIC MARKET FOR
THE NOTES OR WARRANTS (NOR IS ONE EXPECTED TO DEVELOP) AND THE SUBSCRIBER
THEREFORE MUST BEAR THE ECONOMIC RISKS OF THE INVESTMENT IN THE NOTES OR
WARRANTS FOR AN INDEFINITE PERIOD OF TIME. THE SUBSCRIBER UNDERSTANDS THAT
THE SUBSCRIBER MAY NOT AT ANY TIME DEMAND THE PURCHASE BY THE COMPANY OF THE
SUBSCRIBER'S UNIT.
(iii) The Subscriber agrees: (A) that the Subscriber will not
sell, assign, pledge, give, transfer or otherwise dispose of the Unit or any
interest therein, or make any offer or attempt to do any of the foregoing,
except pursuant to a registration of the Unit under the Securities Act and
all applicable state securities laws or in a transaction which is exempt from
the registration provisions of the Securities Act and all applicable state
securities laws; (B) that the Parent and any transfer agent for the Unit
shall not be required to give effect to any purported transfer the Unit
except upon compliance with the foregoing restrictions; and (C) that a legend
in substantially the following form will be placed on the certificates
representing the Units:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES ACT, AND MAY NOT BE TRANSFERRED WITHOUT
REGISTRATION UNDER SUCH ACTS OR AN OPINION OF COUNSEL
SATISFACTORY TO
11
THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED."
(iv) The Subscriber has not offered or sold any portion of the
subscribed for Unit and has no present intention of dividing such Unit with
others or of reselling or otherwise disposing of any portion of such Unit
either currently or after the passage of a fixed or determinable period of
time or upon the occurrence on nonoccurrence of any predetermined event or
circumstance in violation of the Securities Act or applicable state
securities laws.
5. SURVIVAL AND INDEMNIFICATION. All representations, warranties and
covenants contained in this Agreement and the indemnification contained in
this Paragraph 5 shall survive (i) the acceptance of the Subscription
Agreement by the Company, (ii) changes in the transactions, documents and
instruments described herein which are not material or which are to the
benefit of the Subscriber, and (iii) the death or disability of the
Subscriber. The Subscriber acknowledges the meaning and legal consequences
of the representations, warranties and covenants in determining the
Subscriber's qualification and suitability to purchase the Unit. The
Subscriber hereby agrees to indemnify, defend and hold harmless the Company,
and its officers, directors, employees, agents and controlling persons, from
and against any and all losses, claims, damages, liabilities, expenses
(including attorneys' fees and disbursements), judgments or amounts paid in
settlement of actions arising out of or resulting from the untruth of any
representation herein or the breach of any warranty or covenant herein.
Notwithstanding the foregoing, however, no representation, warranty, covenant
or acknowledgment made herein by the Subscriber shall in any manner be deemed
to constitute a waiver of any rights granted to it under the Securities Act
or state securities laws.
6. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell the Unit specified herein is subject to the condition that
the representations and warranties of the Subscriber contained in Paragraph 4
hereof shall be true and correct on and as of the Closing Date in all
respects with the same effect as though such representations and warranties
had been made on and as of the Closing Date.
7. ESCROW. An Escrow to fund the purchase price of the Units shall be
established as follows:
(a) Establishment of Escrow. The Company and the Escrow Agent shall
enter into the Escrow Agreement substantially in the form attached hereto as
Exhibit "B".
(b) Payment into Escrow. Upon execution of this Agreement by the
Issuer and the Subscriber, and not later than March 17, 1998, the Subscriber
shall transfer to the Escrow Agent the principal amount of the Note set forth
opposite the Subscriber's name on Exhibit "A" hereto.
(c) Effect of Escrow. The execution of this Agreement and the deposit
of the above sums into escrow shall not be deemed the purchase of the Unit by
the Subscriber. Rather, such sums shall be held in escrow with either the
Escrow Agent (or in the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Account upon satisfaction of the
conditions specified in the Escrow Agreement) pending the simultaneous
12
closing of the Acquisition Agreement, the Financing Note and this Agreement
(the "Final Closing"). The purchase of the Units shall occur upon the Final
Closing.
(d) Repayment. Should the Closing not occur, the Company shall cause
all sums delivered to the Escrow Agent and disbursed by the Escrow Agent
pursuant to the terms of the Escrow Agreement to be collected by the Escrow
Agent. Such sums shall then be repaid to the Subscriber pursuant to the
terms of the Escrow Agreement.
8. SUBSCRIBER CONDITIONS FOR CLOSING.
The Company's Obligations. The Subscriber's obligation to purchase the
Unit on the Closing Date shall be subject to the performance by the Company
of its agreements hereunder which, by the terms hereof, are to be performed
at or prior to the time of delivery of the Unit and to the following further
conditions precedent:
(a) Closing Certificates.
(i) From the Company. ▇▇▇▇ ▇. ▇▇▇▇, Esq. of Bergman,
Yonks, ▇▇▇▇▇ & Bird, L.L.P. (the "Purchasers' Counsel"), shall have
received a certificate dated the Closing Date, signed by an authorized
officer of both the Parent and Subsidiaries, the truth and accuracy of
which shall be a condition to Subscriber's obligation to purchase the
Unit proposed to be sold to Subscriber and to the effect that (1) the
representations and warranties of the Parent and Subsidiaries herein are
true and correct on and as of the Closing Date, (2) the Parent and
Subsidiaries have performed all of its obligations hereunder which are
to be performed on or prior to the Closing Date, (3) no default has
occurred and is continuing in either this Agreement or the Acquisition
Agreement, (4) the corporate good standing of the Parent and
Subsidiaries, and (5) that all contingencies necessary to close the
Acquisition Agreement and the Financing Note have been satisfied or
waived and that the Parent and Subsidiaries shall close the Acquisition
Agreement upon authorization by Purchasers' Counsel pursuant to
paragraph 8(a)(ii).
(ii) From Subscriber's Special Counsel. The Purchasers'
Counsel, on behalf of the Subscribers, shall have delivered (i) a
certificate to counsel for the Company authorizing the release of the
Purchase Price (as defined in the Acquisition Agreement) from the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Account to the Sellers of the Czech Casinos, and (ii) a
certificate to the Escrow Agent directing the release of the remaining
escrowed sums pursuant to the Escrow Agreement.
(b) Related Transactions. The Company shall have consummated
the sale of the minimum amount of the Units comprising the offering and all
such Subscribers shall
13
have wire transferred to the Escrow Agent an amount equal to the principal
amount of the Notes so purchased in compliance with paragraph 7 above.
(c) The Indentures. The Parent, the Subsidiaries and the Trustee
shall have simultaneously authorized, executed and delivered the Indentures.
The Indentures shall be in full force and effect and shall constitute the
valid, binding and enforceable obligation of the Parent, Subsidiaries and the
Trustee, except that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application relating to or affecting the rights and remedies of creditors and
by general equitable principles, regardless of whether such enforceability is
considered in a proceding at law or in equity, and no default on the part of
the Parent or Subsidiaries shall exist thereunder.
(d) Operative Agreements. Each of the other Operative Agreements
to be executed and delivered on or before the Closing Date shall have been
duly authorized and simultaneously executed and delivered by each of the
Parent, the Subsidiaries and other parties thereto (including the Finance
Note and related indenture and all related documents necessary to grant the
liens and security interests contemplated therein), shall be in full force
and effect and shall constitute the valid, binding and enforceable obligation
of each party, except that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application relating to or affecting the rights and remedies of creditors and
by general equitable principles, regardless of whether such enforceability is
considered in a proceeding in law or in equity.
(f) Proceedings. All proceedings in connection with the
transaction contemplated by the Operative Agreements shall be reasonably
satisfactory to the Purchaser's Counsel and the Purchaser's Counsel shall
have received all such counterpart originals or certified or other copies of
such documents Purchaser's Counsel may reasonably request.
(g) Opinion of Counsel. On the Closing, Subscribers shall have
received an opinion of counsel in a form reasonably acceptable to
Purchaser's Counsel.
(h) The Acquisition Agreement and the Financing Note shall close
simultaneously with this Agreement, although the Units shall close
sequentially immediately prior to the Financing Note.
(i) The Parent shall deliver executed documents of the
restructured 1999 Notes which extend the maturity date thereof to not less
than six (6) months beyond the maturity date of the Notes and convert the
fixed interest payments to a cash flow feature, on terms acceptable to
Subscribers investing three quarters of the dollar of this Subscription.
(j) Either (i) each of the outstanding Warrants set forth on
Exhibit C attached hereto shall have been amended so as to (a) eliminate the
anti-dilution provisions contained therein and replace them with customary
anti-dilution protections substantially identical to those granted to the
holders of the Warrants hereunder, and (b) waive any anti-dilution
adjustments for the issuance of the Warrants hereunder or the issuance of the
Common Stock upon exercise thereof, or
14
(ii) the holders of the Warrants hereunder shall be entitled to the most
favorable of such anti-dilution provisions contained in such warrants such
that the Warrants issued hereunder shall at all times after the issuance date
be exercisable into 40% of the shares of Parent Common Stock outstanding
(fully diluted for (a) the exercise of such Warrants, (b) the exercise of any
warrants or other securities issued to the holders of the Company's
outstanding 12% Secured Convertible Senior Bonds in connection with the
restructuring thereof, and (c) the exercise of the Company's currently
outstanding warrants having an exercise price less than $7.00 per share
(taking into consideration any anti-dilution adjustments contained therein
for the issuance of the Warrants or the issuance of the Parent Common Stock
upon exercise thereof)) or (iii) such other actions shall be taken to resolve
any anti-dilution provided for in the warrants set forth on Exhibit "C" as
are otherwise acceptable to the Subscribers of 75% in dollar face amount of
the Units.
9. EXPENSES AND CONSENTS.
9.1 Expenses. Whether or not the transactions contemplated hereby
shall be consummated, the Company will pay all reasonable expenses in
connection with such transactions and in connection with any amendments or
waivers (whether or not the same become effective) under or in respect of the
Operative Agreements, including, without limitation: (i) the cost and expense
of preparing and reproducing the Operative Agreements, of furnishing all
opinions by counsel for the Company as to any legal matter arising hereunder
and all certificates on behalf of the Company; (ii) the cost of delivering to
Subscriber's principal office, insured to Subscriber's satisfaction, the
certificates representing the Unit issued and sold to Subscriber hereunder;
(iii) the reasonable fees, expenses and disbursements of Bergman, Yonks,
▇▇▇▇▇ & Bird, L.L.P. and White & Case, and other necessary European Special
Counsel, as counsel to the Subscriber's in connection with such transactions
and any such amendments or waivers; (iv) the costs and expenses, including
attorneys' fees, incurred by Subscriber or any subsequent holder of the Notes
or Warrants in enforcing (or determining whether or how to enforce) any
rights under any Operative Agreement or in responding to any subpoena or
other legal process in connection with any Operative Agreement or the
transactions contemplated hereby; and (v) the reasonable out-of-pocket
expenses incurred by Purchaser's Counsel on behalf of Subscriber in
connection with such transactions and any such amendments or waivers. The
Parent will also pay, and will save Subscriber and each holder of any Unit
harmless from, all reasonable claims in respect of the fees, if any, of
brokers and finders (unless engaged by Subscriber) and any transfer and all
liabilities with respect to any transfer taxes (including interest and
penalties) which may be payable in respect of the execution and delivery
hereof of the Notes and Warrants hereunder and any amendment, waiver or
forbearance under or in respect hereof or of the Notes and Warrants.
9.2 Consents.
(a) ▇▇▇▇ ▇. ▇▇▇▇, Esq. of Bergman, Yonks, ▇▇▇▇▇ & Bird, LLP, counsel to
the purchasers in this transaction, also represents Value Partners, Ltd.
which is the holder of a majority of Trans World Gaming Corp. 12% Secured
Convertible Senior Bonds due 1999 (the "1999 Notes") and a major investor in
the Notes offered hereby. By executing this Agreement, you shall be deemed
to have advised ▇▇. ▇▇▇▇ that after consideration of the above matters and
such consultation with independent counsel and others as you have deemed
necessary, you have consented to representation
15
by ▇▇. ▇▇▇▇ of Value Partners, Ltd. and of the purchasers as a group in
connection with the preparation of the documents in connection with this
transaction, as well as to ▇▇. ▇▇▇▇'▇ continued representation of Value
Partners, Ltd. and their affiliates in connection with matters, including as
to the interest acquired by Value Partners, Ltd., in this transaction. In
addition, you hereby waive any conflict of interest that might arise by
reason of ▇▇. ▇▇▇▇ 's representation of Value Partners, Ltd. and the
purchasers as a group in connection with the preparation of the documents
contemplated hereby and of ▇▇. ▇▇▇▇'▇ representation of Value Partners in the
proposed restructure of the 1999 Notes.
(b) You further represent that you have received and reviewed each of
the closing documents and your acceptance hereof and your signature hereon
shall constitute acceptance of the terms and conditions of each of the
closing documents. In doing so, you acknowledge that the documents provided
to you are in substantially the form which shall be executed and delivered at
Closing, but may be modified, prior to Closing, consistent with the terms of
the transaction as set forth herein, in the Memorandum and in such documents.
(c) You further acknowledge that no representation or warranty, express
or implied, is made by Libra Investments, Inc. ("Libra") or any of its
representatives as to the accuracy or completeness of the information set
forth herein or in the Confidential Private Placement Summary, and nothing
contained herein or in the Confidential Private Placement Summary is, or
shall be relied upon as, a promise or representation by Libra or any of its
representatives, whether as to the past or the future. Neither Libra nor any
of its representatives has independently verified any of such information and
they do not assume any responsibility for its accuracy or completeness.
(d) You further acknowledge that you are not relying upon Bergman,
Yonks, ▇▇▇▇▇ & Bird, L.L.P. for advice or counsel as to the tax and
securities laws consequences of this Agreement.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in this Agreement or the other Operative Agreements,
or made in writing by or on behalf of the Parent, the Subsidiaries or the
Subscriber, in connection with the transactions contemplated by this
Agreement or the other Operative Agreements, shall survive the execution and
delivery of this Agreement and the other Operative Agreements. All
statements contained in any certificate or other instrument delivered by or
on behalf of the Parent or the Subsidiaries pursuant to this Agreement and
the other Operative Agreements or in connection with any amendment, waiver or
modification of this Agreement or any of the other Operative Agreements shall
be deemed representations and warranties of the Parent and Subsidiaries or
the Subscriber (as the case may be) under this Agreement.
11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
UNITS OR ANY OTHER OPERATIVE AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY
OR THEREBY OR THE SUBJECT MATTER
16
OF ANY OF THE FOREGOING.
12. NOTICES. All notices and other communications provided for herein
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid, telex, telecopier or overnight air courier guaranteeing next
day delivery:
(a) if to the Company, to it at the following address:
Trans World Gaming Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Financial Officer
(b) if to the Escrow Agent, to it at the following address:
U.S. Trust Company of Texas
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
(c) if to the Subscriber, to the address set forth on the signature
page hereto, or at such other address as either party shall have
specified by notice in writing to the other.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five business days
after being deposited in the mail, certified mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is orally acknowledged,
if telecopied; and the next business day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
13. HOLD HARMLESS. Neither the Purchasers' Counsel, nor his firm, nor
any member thereof shall be liable for any action taken or omitted or for any
loss or injury resulting from its actions or its performance or lack of
performance of its duties hereunder or in the Escrow Agreement in the absence
of gross negligence, violation of law or regulation or willful misconduct on
his part. In no event shall the Purchasers' Counsel, his firm or any member
thereof, be liable for acting in accordance with or relying upon any
instruction, notice, demand, certificate or document from the parties hereto,
for any consequential, punitive or special damages. The Purchasers' Counsel,
his firm or any member thereof, shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of the Purchasers'
Counsel (including but not limited to any act or provision of any present or
future law
17
or regulation or government authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or, facsimile, Internet,
telex or other wire or communication facility).
14. NOTIFICATION OF CHANGES. The Subscriber and the Company agree and
covenant to notify the other promptly upon the occurrence of any event prior
to the Closing which would cause any representation, warranty, covenant or
other statement contained in this Subscription Agreement by such person so
notifying to be false or incorrect or of any change in any statement made
herein occurring prior to the Closing Date.
15. ASSIGNABILITY. This Subscription Agreement is not assignable by
the Subscriber or the Company, and may not be modified, waived or terminated
except by an instrument in writing signed by the party against whom
enforcement of such modifications, waiver or termination is sought.
16. BINDING EFFECT. Except as otherwise provided herein, this
Subscription Agreement shall be binding upon and inure to the benefit of the
parties and their heirs, executors, administrators, successors, and legal
representatives, and assigns, and the agreements, representations, warranties
and acknowledgments contained herein shall be deemed to be made by and be
binding upon such heirs, executors, administrators, successors, and legal
representatives. and assigns. If the Subscriber is more than one person,
the obligation of the Subscriber shall be joint and several and the
agreements, representations, warranties and acknowledgments contained herein
shall be deemed to be made by and be binding upon each such person and his
heirs, executors, administrators and successors.
17. OBLIGATIONS IRREVOCABLE. The obligations of the Subscriber shall
be irrevocable, (unless the Acquisition does not Close pursuant to the terms
hereof), except with the consent of the Company, until the Closing or earlier
termination of the Offering, which may be terminated at any time in the sole
discretion of the Company.
18. ENTIRE AGREEMENT. This Subscription Agreement constitutes the
entire agreement of the Subscriber and the Company relating to the matters
contained herein, superseding all prior contracts, commitments, or
agreements, whether oral or written.
19. GOVERNING LAW. This Subscription Agreement shall be governed and
controlled as to the validity, enforcement, interpretations, construction and
effect and in all other aspects by the substantive laws of the State of NEW
YORK, without reference to conflicts of laws principles.
20. SEVERABILITY. If any provision of this Subscription Agreement or
the application thereof to any Subscriber or circumstance shall be held
invalid or unenforceable to any extent, the remainder of this Subscription
Agreement and the application of such provision to other subscriptions or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
18
21. HEADINGS. The headings in this Subscription Agreement are inserted
for convenience and identification only and are not intended to describe,
interpret, define, or limit the scope, extent or intent of this Subscription
Agreement or any provision hereof.
22. COUNTERPARTS. This Subscription Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which together shall be deemed to be one
and the same agreement.
23. DOCUMENTS BEING TENDERED. The Subscriber hereby tenders two
completed and executed copies of this Subscription Agreement,
[This portion of the page is intentionally left blank.]
19
IN WITNESS WHEREOF, the undersigned Subscriber has executed this Subscription
Agreement this _____ day of March, 1998.
CORPORATE SUBSCRIBER:
By: ____________________________________
Its: ___________________________________
INDIVIDUAL SUBSCRIBER:
By: ____________________________________
PARTNERSHIP SUBSCRIBER:
By: ____________________________________
Its: ___________________________________
Accepted this ___ day of March, 1998, as to the Unit.
TRANS WORLD GAMING CORP:
By: ____________________________________
By: ____________________________________
TWG INTERNATIONAL U.S. CORPORATION:
By: ____________________________________
By: ____________________________________
TWG FINANCE CORP:
By: _______________________________________
Its: ________________________________________
20
SCHEDULE 3(M)
EMPLOYMENT AGREEMENTS AS OF MARCH 2, 1998:
1. ▇▇▇▇▇▇ Tottenham, Pres. & CEO of TWG; by agreement dated 12/26/96
and concluding 12/31/01; salary of $150,000 per annum
2. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Pres. MATS by agreement; dated 4/15/97 and
concluding 4/14/02; salary of $100,000 per annum
3. ▇▇▇▇▇ ▇▇▇▇▇, Dir. of Operations of TWG by agreement; dated 2/1/97
and concluding 1/31/00; salary of $90,000 per annum with a
recoverable draw of $20,000 per annum
Each of the above is covered by the 1993 Stock Option Plan and the 1996
Management Incentive Plan.
21
SCHEDULE 3(N)
UNDISCLOSED LIABILITIES.
None
22
SCHEDULE 3(O)
AFFILIATE TRANSACTIONS
None
23
Exhibit "A"
Number of
Subscriber Principal Amount ---------
---------- of Notes Warrants
-------- --------
Amir Development $300,000 102,644
Banco Santander $1,000,000 342,148
CS First Boston Corp. $5,000,000 1,710,741
Value Partners, Ltd. $8,000,000 2,737,186
Fort Pitt Investment Fund $750,000 256,611
Lim Investment Management $250,000 85,537
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ $250,000 85,537
▇▇▇▇▇▇, ▇▇▇▇▇ $100,000 34,215
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $1,000,000 342,148
Palestra Capital LLC $300,000 102,644
▇▇▇▇▇▇, ▇▇▇▇ $50,000 17,107
24
EXHIBIT "B"
ESCROW AGREEMENT
25
Exhibit "C"
TRANS WORLD GAMING
CAPITAL STRUCTURE(1)(2)
Warrants Options
-------- -------
Common Grant Exercise Expiration Grant Exercise Expiration
Shares # shares Date Price $ Date # shares Date Price Date
------ -------- ---- -------- -------- -------- ----- ----- ----
IPO 2,544,286 1,511,429 12/15/94 8.50 12/15/99
Underwriter 151,143 12/15/94 11.55 12/15/99
Underwriter 151,143 12/15/94 13.5 12/15/99
▇▇ ▇▇▇▇▇ 299,925 3/26/96 0.01 3/26/02
▇▇ ▇▇▇▇▇ 199,960 6/3/96 0.01 6/2/02
Value Partners 600,000 6/30/96 1.00 6/29/01
Value Partners 220,760 12/19/97 0.50 12/31/99
Anazai Partners 200,000 6/30/96 1.00 6/29/01
New Generation 100,000 6/30/96 1.00 6/29/01
▇▇▇▇▇▇▇▇ 20,000 6/30/96 1.00 6/29/01
Fundamental Invest 40,000 6/30/96 1.00 6/29/01
Tottenham 500,000 250,000 1/1/97 0.59375 12/31/01 1,000 10/2/96 1.59375 10/1/01
Tottenham 1,000 12/31/96 1.00 12/30/01
Tottenham 100,000 12/31/97 0.30 12/30/02
Prime Properties 120,000 12/22/94 7.00 12/21/97
Prime Properties -120,000 Expired
Chrysolith 200,000 12/22/94 7.00 12/21/97
Chrysolith -200,000 Expired
Stockcomm 12,500 1/18/95 9.00 open
▇▇▇▇▇▇▇▇▇▇ 1,000 5/22/95 3.125 5/21/00
▇▇▇▇▇▇▇▇▇▇ 25,000 3/7/96 1.4375 3/6/01
▇▇▇▇▇▇▇▇▇▇ 75,000 12/31/96 1.00 12/30/01
▇▇▇▇▇▇▇▇▇▇ 1,000 3/31/97 1.00 3/30/02
▇▇▇▇▇▇▇▇▇▇ 1,000 6/30/97 0.56 6/29/02
▇▇▇▇▇▇▇▇▇▇ 1,000 9/30/97 0.35 9/29/02
▇▇▇▇▇▇▇▇▇▇ 1,000 12/31/97 0.30 12/30/02
▇▇▇▇▇▇▇▇▇ 20,000 5/22/95 3.125 5/21/00
▇▇▇▇▇▇▇▇▇ 50,000 12/31/96 1.00 12/30/01
▇▇▇▇▇▇▇▇▇ 50,000 12/31/97 0.30 12/30/02
▇▇▇▇ 1,000 10/2/96 1.59375 10/1/01
▇▇▇▇ 1,000 12/31/96 1.00 12/30/01
----------------------------------
1 This Table does not include the $4,800,000 outstanding principal
amount of 12% Secured Convertible Senior Bonds due 1999 (the "Senior Bonds")
which are presently convertible into common stock at $2.50 per share.
Assuming all such Senior Bonds are restructured on the terms outlined in the
Supplement, the conversion feature will be eliminated and warrants will be
issued to purchase 3,200,000 shares of Common Stock with an exercise price of
$1.50 per share.
2 This Table does not include warrants to purchase 2.0% of the
fully-diluted Common Stock of the Issuer (except for certain out of the money
warrants and options outstanding prior to the private placement) at an
exercise price of $.01 per share to be issued to Libra Investments Inc. in
connection with the private placement. Such warrants are in addition to the
advisory fee equal of 5.0% of the gross proceeds of any securities issued
or sold in the private placement (except that such fee shall be 3.0% of the
gross proceeds of any securities issued or sold to Value Partners, Ltd.)
26
Warrants Options
-------- -------
Common Grant Exercise Expiration Grant Exercise Expiration
Shares # shares Date Price $ Date # shares Date Price Date
------ -------- ---- -------- -------- -------- ----- ----- ----
▇▇▇▇ 1,000 3/31/97 1.00 3/30/02
▇▇▇▇ 1,000 6/30/97 0.56 6/29/02
▇▇▇▇ 1,000 9/30/97 0.35 9/29/02
▇▇▇▇ 1,000 12/31/97 0.30 12/30/02
▇▇▇▇▇▇▇ 20,000 12/31/96 1.00 12/30/01
▇▇▇▇▇▇▇ 5,000 12/31/97 0.30 12/30/02
▇▇▇▇▇ 25,000 2/1/97 1.3125 2/1/02
▇▇▇▇▇ 25,000 2/1/97 2.00 2/1/02
▇▇▇▇▇ 40,000 12/31/97 0.30 12/30/02
▇▇▇▇▇, Sr 25,000 4/19/96 0.90625 4/18/01
▇▇▇▇▇, Sr 20,000 10/2/96 1.59375 10/1/01
▇'▇▇▇▇▇▇ 4,000 12/31/97 0.30 12/30/02
▇▇▇▇▇▇▇ 10,000 12/31/97 0.30 12/30/02
TOTALS 3,044,286 3,744,360 519,500
--------- --------- -------
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27