Century Casinos Inc. 7,132,667 Austrian Depositary Certificates, each representing one share of Common Stock UNDERWRITING AGREEMENT dated October 10, 2005 Bank Austria Creditanstalt AG
Execution
Copy
Century
Casinos Inc.
7,132,667
Austrian Depositary Certificates,
each
representing one share of Common Stock
dated
October 10, 2005
Bank
Austria Creditanstalt AG
October
10, 2005
BANK
AUSTRIA CREDITANSTALT AG
c/o
CA IB
Corporate Finance Beratungs Ges.m.b.H.
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Ladies
and Gentlemen:
Introductory.
A.
CENTURY CASINOS INC., a Delaware corporation (the “Company), proposes to sell to
Bank Austria Creditanstalt AG (the “Underwriter”) an aggregate of 7,132,667
Austrian Depositary Certificates (the “ADCs”), each representing one share of
Common Stock of the Company, par value $0.01 per share (the “Common Stock”), to
be issued pursuant to an ADC agreement, dated as of September 30, 2005, among
the Company, Oesterreichische Kontrollbank Aktiengesellschaft, as depositary
(the “Depositary”), and the Underwriter. The shares of Common Stock represented
by the ADCs are hereinafter called the “Shares”.
B.
The
Company proposes to offer and sell the ADCs, through the Underwriter, in the
form of a public offering to retail and institutional investors in Austria
and
in the form of a private placement to institutional investors outside of Austria
and outside the United States, Canada and Japan (collectively, the
“Offering”).
C.
On
October 4, 2005 ADCs representing the Shares and other issued and outstanding
shares of Common Stock deposited against the issuance of ADCs from time to
time,
were admitted to listing on the Official Market (Zulassung
zum amtlichen Handel)
on the
Vienna Stock Exchange (the “VSE”).
D.
The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”) a registration statement on Form S-3 (File No. 333-126519),
including a prospectus (the “Basic Prospectus”) relating to, among other things,
Common Stock and depositary certificates representing shares of Common Stock
to
be issued from time to time by the Company (the “Shelf Securities”) and the
Company has filed such post-effective amendments thereto as may be required
prior to the execution of this Agreement. The registration statement, as
amended, including the financial statements, exhibits and schedules thereto
and
the documents incorporated by reference in the Basic Prospectus, in the form
in
which it was declared effective by the Commission under the Securities Act
of
1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), is called the “Registration
Statement”.
E.
In
connection with the Offering and the listing on the VSE, the Company has
prepared, in accordance with Commission Regulation (EC) No. 809/2004 of 29
April
2004
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and
in
conformity with the Austrian Capital Market Act (Kapitalmarktgesetz;
the
“Capital Market Act”) and the Austrian Stock Exchange Act (Börsegesetz;
the
“Stock Exchange Act”), a prospectus (which includes the Basic Prospectus) dated
September 29, 2005 in the English language (the “Austrian Preliminary
Prospectus”). The Company has filed the Austrian Preliminary Prospectus with the
Financial Market Authority (Finanzmarktaufsichtsbehörde;
“FMA”)
in accordance with the Capital Market Act; on September 28, 2005 the FMA
approved the Austrian Preliminary Prospectus. On September 30, 2005 the Company
published and filed with the Filing Office (Meldestelle)
at the
Oesterreichische Kontrollbank Aktiengesellschaft the Austrian Preliminary
Prospectus and published a notice in the official gazette Amtsblatt
zur Wiener Zeitung
on the
day thereafter, in each case in accordance with the Capital Market
Act.
F.
The
Company has filed the Austrian Preliminary Prospectus with the Commission
pursuant to Rule 424(b) under the Securities Act as a preliminary prospectus
(the “U.S. Preliminary Prospectus”).
G.
Upon
pricing of the Offering, the Company will prepare a supplement (Prospekterg’nzung)
to the
Austrian Preliminary Prospectus, which will include in particular the pricing
information (the Austrian Preliminary Prospectus, as so supplemented, the
“Austrian Final Prospectus”; the Austrian Preliminary Prospectus and the
Austrian Final Prospectus are collectively referred to herein as the “Austrian
Prospectus”).
H.
The
Company proposes to file the Austrian Final Prospectus with the Commission
pursuant to Rule 424(b) under the Securities Act as a final prospectus (the
“U.S. Final Prospectus”; the U.S. Preliminary Prospectus and the U.S. Final
Prospectus are collectively referred to herein as the “U.S. Prospectus” and,
together with the Austrian Prospectus, the “Prospectuses” and each individually,
a “Prospectus”).
I.
The
Austrian Preliminary Prospectus and the U.S. Preliminary Prospectus, and the
Austrian Final Prospectus and the U.S. Final Prospectus are identical, except
that each U.S. Prospectus shall be deemed to refer to and include, and each
Austrian Prospectus shall be deemed to exclude, the documents incorporated
by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act,
as
of the date of such Prospectus; any reference to any amendment or supplement
to
an U.S. Prospectus shall be deemed to refer to and include, and any reference
to
any amendment or supplement to any Austrian Prospectus shall exclude, any
documents filed after the date of such Prospectus under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in
such Prospectus; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any documents filed under
the
Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement. All references in
this
Agreement to the Registration Statement or a Prospectus, or any amendments
or
supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“▇▇▇▇▇”).
J.
As of
the date of the Austrian Preliminary Prospectus, (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent
public accountants for the Company, delivered to the Underwriter a comfort
letter, (ii) Faegre & ▇▇▇▇▇▇ LLP, U.S. counsel to the Company, delivered to
the Underwriter a legal opinion and a disclosure letter, (iii) Dorda ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Rechtsanw’lte GmbH, Austrian
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counsel
to the Company, delivered to the Underwriter a legal opinion and disclosure
letter and (iv) each of ▇▇▇▇▇ Haitzmann, The ▇▇. ▇▇▇▇▇ Haitzmann Family Trust,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, The Hoetzinger Family Trust and ▇▇▇▇▇▇ ▇▇▇▇ delivered to
the
Underwriter a lock-up letter, in each case in agreed form.
The
Company hereby confirms its agreements with the Underwriter as
follows:
Section
1. Representations
and Warranties of
the
Company.
The
Company hereby represents, warrants and covenants to the Underwriter, by way
of
a guarantee and irrespective of negligence and any investigation the Underwriter
may have conducted (verschuldensunabh’ngige
Garantie),
as
follows:
(a)
The
statements set forth in paragraphs C, D, E, F, G, H and I of the foregoing
Introductory
section
are true and correct in all respects.
(b)
Compliance
with Registration Requirements;
Prospectuses. The
Company meets the requirements for use of Form S-3 under the Securities Act.
The
Registration Statement has been declared effective by the Commission under
the
Securities Act. The Company has complied to the Commission’s satisfaction with
all requests of the Commission for additional or supplemental information.
No
stop order suspending the effectiveness of the Registration Statement is in
effect and no proceedings for such purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated or threatened by the
Commission.
The
U.S.
Prospectus when filed and delivered to the Underwriter for use in connection
with the offer and sale of the Shares and the ADCs complied in all material
respects with the Securities Act. The Austrian Prospectus, as of its date as
well as of the date hereof, complies, and, if amended or supplemented, if
applicable, as of the date of such amendment or supplement, will comply with
all
applicable laws of Austria and all applicable rules and regulations of the
VSE.
Each
of
the Registration Statement and any post-effective amendment thereto, at the
time
it became effective and at the date hereof, complied and will comply in all
material respects with the Securities Act and did not and will not contain
any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading.
The U.S. Prospectus,
as
amended or supplemented, as of its date, at the date hereof, at the time of
any
filing pursuant to Rule 424(b) and at the Closing Date (as defined herein),
did
not, does not and will not contain any untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
The
Austrian Prospectus, as amended or supplemented, as of its date, at the date
hereof and at the Closing Date, (i) did not, does not and will not contain
an
untrue statement of, or omit to state, a fact which is material for the
assessment of an investment in the Shares and the ADCs (enthalt
keine unrichtigen Angaben und Verschweigungen erheblicher Umstande, wenn dadurch
die Verhaltnisse des Emittenten unrichtig wiedergegeben werden),
all
within the meaning of § 11
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of
the
Capital Market Act and § 80 of the Stock Exchange Act and (ii) did not and will
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The
representations and warranties set forth in the two immediately preceding
paragraphs do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the Austrian Prospectus
or
the U.S. Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to the Underwriter furnished
to
the Company in writing by the Underwriter expressly for use therein, as
specified in Section 8(b).
The
documents incorporated by reference in the U.S. Prospectus, when they were
filed
with the Commission or as amended or supplemented prior to the date of this
Agreement, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading; and any further documents so filed
and incorporated by reference in the U.S. Prospectus or any further amendment
or
supplement thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
There
is
no contract or other document required to be described in any Prospectus or
to
be filed as an exhibit to the Registration Statement which has not been
described or filed as required.
(c)
Accuracy
of Statements in Prospectuses. The
statements in the Prospectuses under the headings “Risk Factors—Risks Related to
Our Business—We face extensive regulation and taxation from gaming and other
regulatory authorities, which involves considerable expense and could harm
our
business.”, “—Certain provisions in our certificate of incorporation may require
one or more holders to sell their stock or ADCs to us, even if the holder would
not otherwise want to divest itself of our common stock or ADCs.”, “—Risks
Related to our Common Stock, the ADCs and this Offering—Because we are a foreign
corporation the Austrian and other European takeover regimes do not apply to
our
company.”, “Management’s Discussion and Analysis of Financial Condition and
Results of Operations—Consolidated Results of Operations”,
“Business—Governmental Regulation and Licensing”“—Legal Proceedings”, “—Material
Contracts”, “Management—Board of Directors; Committees”, “—Executive Employment
Agreements”, “Executive Compensation—Employee Incentive Plans”, “—Limitation of
Liability and Indemnification”, “Certain Relationships and Related Party
Transactions”, “Description of Delaware Law and Corporate Governance”, “The
Company”, “Description of Capital Stock”, “U.S. Federal Tax Considerations for
Non-U.S. Holders” and “Austrian Tax Considerations”, insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements, documents
or
proceedings.
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(d)
Distribution
of Offering Material by the Company.
The
Company has not distributed and will not distribute, prior to the later of
the
Closing Date and the completion of the Underwriter’s distribution of the ADCs,
any offering material in connection with the offering and sale of the Shares
or
the ADCs other than a Prospectus or the Registration Statement.
(e)
The
Underwriting Agreement.
This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the Company, enforceable
in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of
general applicability relating to or affecting creditors’ rights and general
equity principles.
(f)
The
ADC Agreement.
The ADC
Agreement has been duly authorized by the Company, and when executed and
delivered by the Company and duly authorized, executed and delivered by the
Depositary, will constitute a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and general equity principles; upon issuance by the Depositary
of ADCs evidencing Shares against the deposit of Shares in respect thereof
in
accordance with the provisions of the ADC Agreement, such ADCs will be duly
and
validly issued, the holders of ADCs will be entitled to the rights specified
therein and in the ADC Agreement; and the ADC Agreement and the ADCs will
conform in all material respects to the descriptions thereof contained in the
Prospectuses.
(g)
Authorization
of the Shares.
The
Shares have been duly authorized for issuance and sale pursuant to the ADC
Agreement and this Agreement and, when issued and delivered by the Company
pursuant to the ADC Agreement and this Agreement against payment of the
consideration specified therefor in this Agreement and the ADC Agreement, will
be validly issued, fully paid and nonassessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Company or under any agreement to which the Company
is a party, or otherwise. No holder of such Shares is or will be subject to
personal liability for liabilities of the Company by reason of being such a
holder.
(h)
No
Transfer Taxes. Other
than as set forth in the Prospectuses, no stamp or other issuance or transfer
taxes or duties and no capital gains, income, withholding or other taxes are
payable by or on behalf of the Underwriter under any Austrian or United States
federal or state law, or the law of any political subdivision thereof, in
connection with (A) the deposit with or on behalf of the Depositary of Shares
by
the Company against the issuance of ADCs, (B) the sale and delivery by the
Company of the ADCs to or for the account of the Underwriter, (C) the sale
and
delivery by the Underwriter of the ADCs to the initial purchasers thereof or
(D)
the execution and delivery of this Agreement or the ADC Agreement.
(i)
No
Applicable Registration or Other Similar Rights.
There
are
no persons with registration or other similar rights to have any equity or
debt
securities registered for sale under the Registration Statement or included
in
the Offering contemplated by this Agreement.
(j)
No
Material Adverse Change.
Except
as
otherwise disclosed in the Prospectuses, subsequent to the respective dates
as
of which information is given in the Prospectuses: (i) there has been no
material adverse change, or any development that could reasonably be expected
to
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result
in a material adverse change, in the condition, financial or otherwise, or
in
the earnings, business, properties, operations or prospects, whether or not
arising from transactions in the ordinary course of business, of the Company
and
its subsidiaries, considered as one entity (any such change is called a
“Material Adverse Change”); (ii) the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation, indirect,
direct or contingent, nor entered into any material transaction or agreement;
and (iii) there has been no dividend or distribution of any kind declared,
paid
or made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any class
of capital stock.
(k)
Independent
Accountants.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP and PricewaterhouseCoopers, Inc., who have expressed their opinion
with respect to the financial statements (which term as used in this Agreement
includes the related notes thereto) filed with the Commission as a part of
the
Registration Statement and included in the Prospectuses, are, or in the case
of
PricewaterhouseCoopers, Inc., were during the periods covered by their reports
included in the Prospectuses, independent public accountants with respect to
the
Company and Century Casinos Africa (Proprietary) Limited, respectively, as
required by the Securities Act and the Exchange Act and the applicable published
rules and regulations thereunder.
(l)
Preparation
of the Financial Statements.
The
financial statements filed with the Commission as a part of or incorporated
by
reference in the Registration Statement and included or incorporated by
reference in the Prospectuses present fairly the consolidated financial position
of the Company and its subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods specified. Such
financial statements comply as to form with the applicable accounting
requirements of the Securities Act and, except as may be expressly stated in
the
related notes thereto, have been prepared in conformity with generally accepted
accounting principles as applied in the United States
applied
on a consistent basis throughout the periods involved. No other financial
statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement or the Prospectuses.
The
financial data set forth in the Prospectuses under the captions “Prospectus
Summary—Summary
Consolidated Financial Data”, “Capitalization” and “Selected Consolidated
Financial Data” fairly present the information set forth therein on a basis
consistent with that of the audited financial statements contained in the
Prospectuses.
(m)
Incorporation
and Good Standing of the Company and its Subsidiaries.
Each
of
the Company and its subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of
its incorporation and has corporate power and authority to own or lease, as
the
case may be, and operate its properties and to conduct its business as described
in the Prospectuses and, in the case of the Company, to enter into and perform
its obligations under this Agreement and the ADC Agreement. Each of the Company
and each subsidiary is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or
in
the aggregate, result in a material adverse effect, or any development that
could reasonably be expected to result in a material adverse effect, on the
condition, financial or otherwise, or on the earnings,
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business,
properties, operations or prospects, whether or not arising from transactions
in
the ordinary course of business, of the Company and its subsidiaries, considered
as one entity (a “Material Adverse Effect”). All of the issued and outstanding
shares of capital stock of each of the Company’s subsidiaries that are owned by
the Company (directly or indirectly) have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim. Except as disclosed in the Prospectuses,
the
Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit
21
to the
Company’s Annual Report on Form 10-K for the fiscal year ended December
31, 2004.
(n)
Capitalization
and Other Capital Stock Matters.
The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Prospectuses under the caption “Description of Capital Stock” (other than
for subsequent issuances, if any, pursuant to employee benefit plans described
in the Prospectuses or upon exercise of outstanding options). The Common Stock
(including the Shares), the ADCs and the ADC Agreement conform in all material
respects to the description thereof contained in the Prospectuses. All of the
issued and outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the outstanding
shares of Common Stock were issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable for,
any capital stock of the Company or any of its subsidiaries other than those
accurately described in the Prospectuses. The description of the Company’s stock
option, stock bonus and other stock plans or arrangements, and the options
or
other rights granted thereunder, set forth or incorporated by reference in
the
Prospectuses accurately and fairly presents in all material respects the
information required to be shown with respect to such plans, arrangements,
options and rights.
(o)
Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals
Required.
Neither
the Company nor any of its subsidiaries (other than Century Resorts Alberta,
Inc., CC Tollgate LLC and Casino Millennium a.s. (the “Specified Subsidiaries”))
is, and to the Company’s knowledge after due inquiry, none of the Specified
Subsidiaries is (i) in violation or in default (or, with the giving of notice
or
lapse of time, would be in default) under (“Default”) its charter or by-laws,
(ii) in Default under any indenture, mortgage, loan or credit agreement, deed
of
trust, note, contract, franchise, lease or other agreement, obligation,
condition, covenant or instrument to which the Company or such subsidiary is
a
party or by which it may be bound,
or to
which any of the property or assets of the Company or any of its subsidiaries
is
subject (each, an “Existing Instrument”), or (iii) in violation of any statute,
law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties,
as
applicable, except with respect to this clause (iii) only, for such violations
as would not, individually or in the aggregate, have a Material Adverse Effect.
The Company’s execution, delivery and performance of this Agreement and the ADC
Agreement, and consummation of the transactions contemplated hereby and by
the
Prospectuses (including the issue of the Shares, the deposit of the Shares
with
the Depositary against issuance of the
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ADCs
and
the sale of the ADCs to the Underwriter) (i) have been duly authorized by all
necessary corporate action of the Company and will not result in any Default
under the charter or by-laws of the Company or any subsidiary, (ii) will not
conflict with or constitute a breach of, or Default under,
or
result in the creation or imposition of any lien, charge or encumbrance upon
any
property or assets of the Company or any of its subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument, and (iii)
will not result in any violation of any statute, law, regulation, order or
decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its subsidiaries or
any
of its or their properties. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company’s execution,
delivery and performance of this Agreement or the ADC Agreement and consummation
of the transactions contemplated hereby and by the Prospectuses, except
such
as
have been obtained or made by the Company and are in full force and effect
under
the Capital Market Act, the Stock Exchange Act, the Securities Act, applicable
state securities or blue sky laws, applicable gaming regulations, and rules
of
the Nasdaq Stock Market.
(p)
No
Material Actions or Proceedings.
Except
as
described in the Prospectuses, there are no legal or governmental actions,
suits
or proceedings pending or, to the best of the Company’s knowledge, threatened
(i) against or affecting the Company or any of its subsidiaries (other than
the
Specified Subsidiaries) or, to the Company’s knowledge after due inquiry,
against or affecting the Specified Subsidiaries, (ii) which has as the subject
thereof any officer or director of, or property owned or leased by, the Company
or any of its subsidiaries (other than the Specified Subsidiaries) or, to the
Company’s knowledge after due inquiry, against or affecting the Specified
Subsidiaries or (iii) relating to environmental or discrimination matters,
where
in any such case (A) there is a reasonable possibility that such action, suit
or
proceeding might be determined adversely to the Company or such subsidiary
and
(B) any such action, suit or proceeding, if so determined adversely, would
reasonably be expected to have a Material Adverse Effect or adversely affect
the
consummation of the transactions contemplated by this Agreement.
(q)
Labor
Matters. No
labor
problem or dispute with the employees of the Company or any of its subsidiaries
exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers, that could have a
Material Adverse Effect.
(r)
Intellectual
Property Rights.
The
Company and its subsidiaries own, possess, license or have other rights to
use,
on reasonable terms, all patents, patent applications, trade and service marks,
trade and service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) necessary for the conduct of the
Company’s business as now conducted. (i) To the Company’s knowledge, there is no
material infringement by third parties of any such Intellectual Property owned
by or exclusively licensed to the Company; (ii) there is no pending or, to
the
Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s rights in or to any material Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis
for
any such claim; (iii) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the
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validity
or scope of any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; and (iv) there
is
no pending or, to the Company’s knowledge, threatened action, suit, proceeding
or claim by others that the Company’s business as now conducted infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other fact
which
would form a reasonable basis for any such claim.
(s)
All
Necessary Permits, etc. Except
as
described in the Prospectuses, the Company and each of its subsidiaries possess
such valid and current licenses (including gaming licenses), certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective businesses,
and neither the Company nor any subsidiary has received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
have a Material Adverse Effect.
(t)
Title
to Properties.
Except
as
disclosed in the Prospectuses, the Company and each of its consolidated
subsidiaries has good and marketable title to all the properties and assets
reflected as owned in the financial statements referred to in Section
1(l)
above,
in each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the
Company or such subsidiary. The real property, improvements, equipment and
personal property held under lease by the Company or any of its subsidiaries
are
held under valid and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or proposed to be
made of such real property, improvements, equipment or personal property by
the
Company or such subsidiary.
(u)
Tax
Law Compliance.
The
Company and its consolidated subsidiaries have filed all necessary United States
federal, state, local and foreign income and franchise tax returns in a timely
manner and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against
any of them, except for any taxes, assessments, fines or penalties as may be
being contested in good faith and by appropriate proceedings. The Company has
made appropriate provisions in the applicable financial statements referred
to
in Section 1(l) above in respect of all United States federal, state and foreign
income and franchise taxes for all current or prior periods as to which the
tax
liability of the Company or any of its consolidated subsidiaries has not been
finally determined.
(v)
Company
Not an “Investment Company”.
The
Company has been advised of the rules and requirements under the Investment
Company Act of 1940, as amended (the “Investment Company Act”). The Company is
not, and after receipt of payment for the ADCs representing the Shares and
the
application of the proceeds thereof as contemplated under “Use of Proceeds” will
not be, an “investment company” within the meaning of the Investment Company Act
and will conduct its business in a manner so that it will not become subject
to
the Investment Company Act.
(w)
Insurance.
Each
of
the Company and its subsidiaries are insured by institutions that the Company
reasonably believes are recognized, financially sound and reputable with
policies
-9-
in
such
amounts and with such deductibles and covering such risks as the Company
reasonably deems adequate and customary for its businesses including, but not
limited to, policies covering real and personal property owned or leased by
the
Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. All policies of insurance insuring the Company or
any
of its subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Company and its subsidiaries
are
in compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; and neither the
Company nor any such subsidiary has been refused any insurance coverage sought
or applied for. The Company has no reason to believe that it or any subsidiary
will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted
and
at a cost that would not have a Material Adverse Effect.
(x)
No
Restrictions on Dividends. Except
as
described in or contemplated by the Prospectuses, no subsidiary of the Company
is currently prohibited, directly or indirectly, from paying any dividends
to
the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Prospectuses.
(y)
No
Price Stabilization or Manipulation.
The
Company has not taken and will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate
the
sale or resale of the Shares or the ADCs.
(z)
Related
Party Transactions.
There
are
no business relationships or related-party transactions involving the Company
or
any subsidiary or any other person required to be described in the Prospectuses
which have not been described as required.
(aa)
Internal
Controls and Procedures.
Except
as described in the Prospectuses, the Company maintains (i) effective internal
control over financial reporting as defined in Rule 13a-15 under the Exchange
Act, and (ii) a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with
management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in accordance
with
management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(bb)
No
Material Weakness in Internal Controls. Except
as
disclosed in the Prospectuses, since the end of the Company’s most recent
audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii)
no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
-10-
(cc)
No
Unlawful Contributions or Other Payments.
Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of
its
subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such Persons of the FCPA, including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise
to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA, and the Company, its subsidiaries and,
to
the knowledge of the Company, its affiliates have conducted their businesses
in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue
to
ensure, continued compliance therewith. “FCPA” means Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder.
(dd)
No
Conflict with Money Laundering Laws. The
operations of the Company and its subsidiaries are and have been conducted
at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as
amended, the money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations
or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(ee)
No
Conflict with OFAC Laws. Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of
its
subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
the Company will not directly or indirectly use the proceeds of the offering,
or
lend, contribute or otherwise make available such proceeds, to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(ff)
Compliance
with Environmental Laws.
Except
as
otherwise disclosed in the Prospectuses (i) neither the Company nor any of
its
subsidiaries is in violation of any United States federal, state, local or
foreign law, regulation, order, permit or other requirement relating to
pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Materials of
Environment Concern (collectively, “Environmental Laws”), which violation
includes, but is not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the business of the
Company or its subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and
-11-
(gg)
Brokers.
There
is
no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(hh)
▇▇▇▇▇▇▇▇-▇▇▇▇▇
Compliance. Except
as
disclosed in the Prospectuses, there is and has been no failure on the part
of
the Company and any of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and
the
rules and regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”), including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(ii)
Compliance
with Laws.
The
Company has not been advised, and has no reason to believe, that it and each
of
its subsidiaries are not conducting business in compliance with all applicable
laws, rules and regulations (including all applicable gaming laws) of the
jurisdictions in which it is conducting business, except where failure to be
so
in
compliance would have a Material Adverse Effect.
-12-
Any
certificate signed by an officer of the Company and delivered to the Underwriter
shall be deemed to be a representation and warranty by the Company to the
Underwriter as to the matters set forth therein.
Section
2. Purchase,
Sale and Delivery of the ADCs.
(a)
The
ADCs.
The
Company agrees to sell to the Underwriter the ADCs upon the terms herein set
forth. On the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Underwriter agrees to purchase from the Company the ADCs. The purchase
price
per ADC to be paid by the Underwriter to the Company shall be EUR 5.50834 (equal
to the offering price of EUR 5.78000 per ADC less underwriting commissions
per
ADC of EUR 0.27166).
(b)
The
Closing Date.
Delivery
of the ADCs to be purchased by the Underwriter and payment therefor shall be
made in accordance with Section 2(d) below at 9:00 a.m. Vienna time, on October
13, 2005, or such other time and date not later than October
14, 2005, as the Underwriter shall designate by notice to the Company (the
time
and date of such closing are called the “Closing Date”).
(c)
Payment
for the ADCs.
Payment
for the ADCs shall be made at the Closing Date by wire transfer of immediately
available funds to an account of the Company with the Underwriter in
Austria.
(d)
Deposit
of the Shares; Delivery of the ADCs.
On
the
business day immediately following the date of this Agreement, the Company
shall
issue and thereupon deposit, in accordance with the written instructions of
the
Depositary, the number of Shares equal to the number of ADCs to be sold to
the
Underwriter hereunder on the Closing Date in
accordance with the provisions of the ADC Agreement.
The
Company shall cause the Depositary to issue and transfer to the Underwriter,
by
book-entry transfer to a securities account to be specified by the Underwriter,
on the Closing Date the number of ADCs to be sold to the Underwriter hereunder
on the Closing Date. Time shall be of the essence, and delivery at the time
and
place specified in this Agreement is a further condition to the obligations
of
the Underwriter.
Section
3. Additional
Covenants of
the
Company.
The
Company further covenants and agrees with the Underwriter as
follows:
(a)
Underwriter’s
Review of Proposed Amendments and Supplements.
During
such period beginning on the date hereof and ending on the later of the Closing
Date or such date, as a Prospectus is no longer required by applicable law
to be
delivered in connection with sales by the Underwriter or a dealer (the
“Prospectus Delivery Period”), prior to amending or supplementing the
Registration Statement or any Prospectus (including any amendment or supplement
through incorporation by reference of any report filed under the Exchange
Act),
the
Company shall furnish to the Underwriter for review a copy of each such proposed
amendment or supplement, and the Company shall not file or use any such proposed
amendment or supplement to which the Underwriter reasonably
objects.
-13-
(b)
Securities
Laws Compliance.
During
the Prospectus Delivery Period, the Company shall promptly advise the
Underwriter in writing (i) of the receipt of any comments of, or requests for
additional or supplemental information from, the Commission, the FMA or the
VSE,
(ii) of the time and date of any filing of any post-effective amendment to
the
Registration Statement or any amendment or supplement to any Prospectus, (iii)
of the time and date that any post-effective amendment to the Registration
Statement becomes effective and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any
order preventing or suspending the use of any Prospectus, or of any proceedings
to remove, suspend or terminate from listing or quotation the Common Stock
or
the ADCs from any securities exchange upon which it is listed for trading,
admitted for listing or included or designated for quotation, or of the
threatening or initiation of any proceedings for any of such purposes. The
Company shall use its best efforts to prevent the issuance of any such stop
order or suspension of such use. If the Commission shall enter any such stop
order at any time prior to the end of the Prospectus Delivery Period, the
Company will use its best efforts to obtain the lifting of such order at the
earliest possible moment. Additionally, the Company agrees that it shall comply
with the provisions of Rule 424(b) under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under Rule
424(b) were received in a timely manner by the Commission.
(c)
Periodic
Reporting Obligation. During
the Prospectus Delivery Period, the Company will file (i) all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act in the manner and within the time periods required by the Exchange Act,
(ii)
all documents required to be filed by it under the rules and regulations of
the
Nasdaq Stock Market Inc., the VSE and the FMA, in each case in the manner and
within the time periods required by such rules and regulations.
(d)
Amendments
and Supplements to the Prospectus and Other Securities Laws
Matters.
If,
during the Prospectus Delivery Period, an Amendment Event (as defined below)
shall occur, the Company agrees to (i) notify the Underwriter of any such event
or condition and (ii) promptly prepare (subject to Section 3(a) hereof) and
furnish at its own expense to the Underwriter and to dealers, amendments or
supplements to such Prospectus necessary to make the statements in such
Prospectus as so amended or supplemented, in the light of the circumstances
when
such Prospectus is delivered to a purchaser or published in accordance with
applicable laws, not misleading or so that such Prospectus, as amended or
supplemented, will comply with all applicable laws, and the Company will file
such amendment or supplement with the Commission and the FMA. “Amendment Event”
means (i) circumstances which under Austrian law require an amendment of or
a
supplement to any Prospectus in order to ensure that (A) such Prospectus, as
of
its date, does not contain an untrue statement of, or omit to state, a fact
which is material for the assessment of the Shares and the ADCs (unrichtige
Angaben und Verschweigungen erheblicher Umstande, wenn dadurch die Verhaltnisse
des Emittenten unrichtig wiedergegeben werden),
all
within the meaning of § 11 of the Capital Market Act and § 80 of the Stock
Exchange Act, (B) changes, if any, of circumstances that have occurred prior
to
the introduction to trading are reflected in an amendment to such Prospectus
as
provided for in §6(1) of the Capital Market Act, (ii) the existence of any
condition as a result of which any Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, (iii) it being necessary to amend or
supplement any
-14-
(e)
Copies
of any Amendments and Supplements to the Prospectuses.
The
Company agrees to furnish the Underwriter, without charge, during the Prospectus
Delivery Period, as many copies of the Prospectuses and any amendments and
supplements thereto (including any documents incorporated or deemed incorporated
by reference therein) as the Underwriter may reasonably request.
(f)
Copies
of the Registration Statement and the Prospectuses. The
Company will furnish to the Underwriter and counsel for the Underwriter signed
copies of the Registration Statement (including exhibits thereto) and, during
the Prospectus Delivery Period, as many copies of each Prospectus and any
supplement thereto as the Underwriter may reasonably request.
(g)
Blue
Sky Compliance.
The
Company shall cooperate with the Underwriter and counsel for the Underwriter
to
qualify or register the Shares and the ADCs for sale under (or obtain exemptions
from the application of) the foreign
laws of
those
jurisdictions designated by the Underwriter (which shall not include any
qualification or registration under United States state securities or blue
sky
laws, or under the laws of Canada or Japan), shall comply with such laws and
shall continue such qualifications, registrations and exemptions in effect
so
long as required for the distribution of the Shares and the ADCs. The Company
shall not be required to qualify as a foreign corporation or to take any action
that would subject it to general service of process in any such jurisdiction
where it is not presently qualified or where it would be subject to taxation
as
a foreign corporation, other than those arising out of the offering or sale
of
the Shares and the ADCs in any jurisdiction where it is not now so subject.
The
Company will advise the Underwriter promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Shares
or the ADCs for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or exemption,
the Company shall use its best efforts to obtain the withdrawal thereof at
the
earliest possible moment.
(h)
Use
of Proceeds.
The
Company shall apply the net proceeds from the sale of the Shares sold by it
in
the manner described under the caption “Use of Proceeds” in the
Prospectuses.
(i)
Transfer
Agent;
Depositary. The
Company shall maintain, at its expense, a registrar and transfer agent for
the
Common Stock and a depositary issuing ADCs against deposit of Common
Stock.
(j)
Earnings
Statement.
The
Company will timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to its security holders as soon
as practicable an earnings statement (in form complying with Rule 158 under
the
Securities
-15-
(k)
Agreement
Not to Offer or Sell Additional Shares. During
the period commencing on the date hereof and ending on the 180th
day
following the Closing Date, the Company will not, without the prior written
consent of the Underwriter, directly or indirectly, sell, offer, contract or
grant any option to sell, pledge, transfer or establish an open “put equivalent
position” or liquidate or decrease a “call equivalent position” within the
meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or
transfer (or
enter
into any transaction which is designed to, or might reasonably be expected
to,
result in the disposition of), or
announce the offering of, or file any registration statement under the
Securities Act in respect of, any shares of Common Stock, options or warrants
to
acquire shares of the Common Stock or securities exchangeable or exercisable
for
or convertible into shares of Common Stock (other than as contemplated by this
Agreement with respect to the Shares and the ADCs); provided, however, that
the
Company may file a registration statement on Form S-8 relating to any stock
option plan described in the Prospectuses and may issue shares of its Common
Stock or options to purchase its Common Stock, or Common Stock upon exercise
of
options, pursuant to any stock option, stock bonus or other stock plan or
arrangement described in the Prospectuses.
(l)
Compliance
with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The
Company will comply with all securities and other laws, rules and regulations,
including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, that are then applicable
to the Company and use its best efforts to cause the Company’s directors and
officers, in their capacities as such, to comply with such laws, rules and
regulations, including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
(m)
Compliance
with VSE Prime Market Rules. For
as
long as the ADCs, the Common Stock or other securities representing Common
Stock
are listed on the VSE, and in any event for a period of three years after the
date of this Agreement, the Company will comply with the prime market rules
(Regelwerk
Prime Market)
of the
VSE, including the recommendations of the VSE set forth therein, as in effect
from time to time.
(n)
Investment
Limitation.
The
Company shall not invest, or otherwise use the proceeds received by the Company
from its sale of the Shares and the ADCs in such a manner as would require
the
Company or any of its subsidiaries to register as an investment company under
the Investment Company Act.
(o)
No
Manipulation of Price.
The
Company will not take, directly or indirectly, any action designed to cause
or
result in, or that has constituted or might reasonably be expected to
constitute, under the Exchange Act, under Commission Regulation (EC) No.
2273/2003 of December 22, 2003 implementing Directive 2003/6/EC of the European
Parliament and of the Council as regards exemptions for buy-back programs and
stabilization of financial instruments, under §§ 48b to 48e of the Austria Stock
Exchange Act or otherwise, the stabilization or manipulation of the price of
any
securities of the Company to facilitate the sale or resale of the Shares or
the
ADCs.
Section
4. Payment
of Expenses.
The
Company agrees to pay all costs, fees and expenses incurred in connection with
the performance of its obligations hereunder and in
-16-
Section
5. Conditions
of the Obligations of the Underwriter.
The
obligations of the Underwriter to purchase and pay for the ADCs as provided
herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section
1
hereof as of the date hereof and as of the Closing Date as though then made,
to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the timely performance by the Company of its
covenants and other obligations hereunder, and to each of the following
additional conditions:
(a)
Accountants’
Comfort Letter.
On
the
date hereof, the Underwriter shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants for the Company, a letter dated the date hereof
addressed to the Underwriter, the form of which is attached as Exhibit
A.
-17-
(b)
Compliance
with Registration Requirements; No Stop Order.
For
the
period from and after effectiveness of this Agreement and prior to the Closing
Date:
(i)
the
Company shall have filed the Prospectuses with the Commission in the manner
and
within the time period required by Rule 424(b) under the Securities Act;
and
(iii)
no
stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect
and
no proceedings for such purpose shall have been instituted or threatened by
the
Commission.
(c)
No
Material Adverse Change.
For
the
period from and after the date of this Agreement and prior to the Closing
Date:
(i)
in
the judgment of the Underwriter there shall not have occurred any Material
Adverse Change;
and
(ii)
there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (a) of this Section 5 which is, in the sole
judgment of the Underwriter, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Shares and the
ADCs as contemplated by the Prospectuses.
(d)
Opinion
and Disclosure Letter of U.S. Counsel for the Company.
On
the
Closing Date the Underwriter shall have received the opinion and disclosure
letter of Faegre & ▇▇▇▇▇▇ LLP, U.S. counsel for the Company, dated as of
such Closing Date, the form of which is attached as Exhibit
B.
(e)
Opinion
and Disclosure Letter of Austrian Counsel for the Company.
On
the
Closing Date the Underwriter shall have received the opinion and disclosure
letter of Dorda ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Rechtsanw’lte GmbH, Austrian counsel for the
Company, dated as of such Closing Date, the form of which is attached as
Exhibit
C.
(f)
Officers’
Certificate.
On
the
Closing Date the Underwriter shall have received a written certificate executed
by the Chairman of the Board and co-Chief Executive Officer or the Vice Chairman
of the Board, co-Chief Executive Officer and President of the Company, and
the
Senior Vice President or Chief Accounting Officer of the Company, dated as
of
such Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, each Prospectus, any supplements
to any Prospectus and this Agreement, to the effect set forth in subsection
(b)
of this Section 5, and further to the effect that:
(i)
for
the period from and after the date of this Agreement and prior to such Closing
Date, there has not occurred any Material Adverse Change;
(ii)
the
representations, warranties and covenants of the Company set forth in Section
1
of this
Agreement are true and correct on and as of such Closing Date with the same
force and effect as though expressly made on and as of such Closing
Date;
and
-18-
(iii)
the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date.
(g)
Bring-down
Comfort Letter.
On
the
Closing Date the Underwriter shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants for the Company, a letter dated such date, in
form and substance satisfactory to the Underwriter, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to
subsection (a) of this Section 5, except that the specified date referred to
therein for the carrying out of procedures shall be no more than three business
days prior to the Closing Date.
(h)
ADC
Agreement.
On or
prior to the date of this Agreement, the Company shall have entered into the
ADC
Agreement with the Depositary.
If
any
condition specified in this Section 5 is not satisfied when and as required
to
be satisfied, this Agreement may be terminated by the Underwriter by notice
to
the Company at any time on or prior to the Closing Date, which termination
shall
be without liability on the part of any party to any other party, except that
Section 4(a), Section 6 and Section 8 shall at all times be effective and shall
survive such termination.
Section
6. Reimbursement
of Underwriter’s Expenses.
If
this
Agreement is terminated by the Underwriter pursuant to Section 5 or Section
9,
or if the sale to the Underwriter of the ADCs on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company or the Depositary to perform any agreement herein or in the ADC
Agreement or to comply with any provision hereof or thereof, the Company agrees
to reimburse the Underwriter upon demand for all out-of-pocket expenses that
shall have been reasonably incurred by the Underwriter or its affiliates in
connection with the proposed purchase and the offering and sale of the ADCs,
including but not limited to fees (up to an amount of EUR 50,000) and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges, plus in each case VAT, to the extent applicable. In
the
event this Agreement is terminated or the transactions contemplated by this
Agreement are not consummated, the provisions of subsections (c), (d) and (e)
of
Section IX of the Mandate Agreement between the Company and CA IB Corporate
Finance Beratungs Ges.m.b.H. dated September 30, 2005 (the “Mandate Agreement”)
shall apply.
Section
7. Selling
Restrictions. The
Underwriter hereby
represents, warrants and covenants to the Company, by way of a guarantee and
irrespective of negligence (verschuldensunabh’ngige
Garantie),
as
follows:
(a)
European
Union Selling Restriction.
In
relation to each member state of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), the
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the “Relevant Implementation Date”) it has not made and will not make an offer
of the ADCs to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the ADCs which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent
-19-
For
the
purposes of this Section 7(a), the expression an “offer of ADCs to the public”
in relation to any ADCs in any Relevant Member State means the communication
in
any form and by any means of sufficient information on the terms of the offer
and the ADCs to be offered so as to enable an investor to decide to purchase
or
subscribe the ADCs, as the same may be varied in that member state by any
measure implementing the Prospectus Directive in that member state, and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(b)
United
Kingdom Selling Restriction.
The
Company has not authorized any offer of ADCs to the public in the United
Kingdom. The ADCs are and will be offered in the United Kingdom only: (i) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities; (ii) to any legal entity which has two or more of
(1)
an average of at least 250 employees during the last financial year; (2) a
total
balance sheet of more than €43,000,000 and (3) an annual net turnover of more
than €50,000,000, as shown in its last annual or consolidated accounts; or (iii)
in any other circumstances which do not require the publication by the Company
of a prospectus pursuant to Article 3 of Directive 2003/71/EC of November 4,
2003, as implemented in the United Kingdom.
(c)
Austrian
Selling Restriction.
Any
offering of the ADCs in Austria will be made by the Underwriter in compliance
with the provisions of the Capital Market Act and other applicable laws or
regulations of Austria.
(d)
U.S.
Securities Act Compliance.
The
Underwriter will not take any action in connection with the offering of the
ADCs
which would, if taken, violate the Securities Act, the Exchange Act or the
rules
and regulations thereunder.
Section
8. Indemnification.
(a)
Indemnification
of the Underwriter.
The
Company agrees to indemnify and hold harmless the Underwriter, its directors,
officers, employees and agents, and each person, if any, who controls the
Underwriter within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which
the
Underwriter or such controlling person may become subject, insofar as such
loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon:
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(i)
any
Prospectus not complying, or allegedly not complying, with all applicable laws
of Austria and all applicable rules and regulations of the VSE; or
(ii)
any
Prospectus containing, or allegedly containing, an untrue statement of, or
omitting, or allegedly omitting, to state, a fact which is material for the
assessment of an investment in the Shares and the ADCs (unrichtige
Angaben und Verschweigungen erheblicher Umstande, wenn dadurch die Verhaltnisse
des Emittenten unrichtig wiedergegeben werden),
all
within the meaning of § 11 of the Capital Market Act and § 80 of the Stock
Exchange Act; or
(iii)
the
Registration Statement containing, or allegedly containing, any untrue statement
of a material fact or omitting, or allegedly omitting, a material fact required
to be stated therein or necessary to make the statements therein not misleading;
or
(iv)
any
Prospectus containing, or allegedly containing, an untrue statement of a
material fact or omitting, or allegedly omitting, a material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; or
(v)
any
breach or alleged breach of any of the representations and warranties of the
Company contained in this Agreement and/or any of the undertakings of the
Company provided for in this Agreement;
and
to
reimburse the Underwriter, its officers, directors, employees, agents and each
such controlling person for any and all expenses (including the fees and
disbursements of counsel chosen by the Underwriter) as such expenses are
reasonably incurred by the Underwriter, or its officers, directors, employees
and agents or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity
agreement shall not apply to any loss, claim, damage, liability or expense
to
the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement
or
any Prospectus; and provided further that the foregoing indemnity agreement
with
respect to the Preliminary Prospectus shall not inure to the benefit of the
Underwriter, or its officers, directors, employees and agents or such
controlling person, with respect to any person asserting any losses, claims,
damages, liabilities or judgments if a copy of the Final Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments
or
supplements thereto) was not sent or given by or on behalf of the Underwriter
to
such person, if required by law to have been delivered, at or prior to the
written confirmation of the sale of ADCs to such person, and if the Final
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages, liabilities or judgments, but only to
the
extent that the Company shall have furnished to the Underwriter such number
of
Final Prospectus (as so amended or supplemented) as the Underwriter requests
and
in sufficient time to permit the Underwriter to distribute such Final Prospectus
(as so amended or supplemented) at or prior to the written confirmation of
the
sale of the ADCs to such person.
The
indemnity agreement set forth in this Section 8(a) shall be in addition to
any
liabilities that the Company may otherwise have.
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(b)
Indemnification
of the Company, its Directors and Officers.
The
Underwriter agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or expense,
as incurred, to which the Company, or any such director, officer or controlling
person may become subject, insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of
or
is based upon (i) any untrue or alleged untrue statement of a material fact
contained in the Registration Statement or any Prospectus or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to
the
extent, and only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration Statement
or any Prospectus in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein or (ii)
any breach or alleged breach of any of the representations, warranties or
covenants of the Underwriter contained in Section 7 of this Agreement; and
to
reimburse the Company, or any such director, officer or controlling person
for
any legal and other expense reasonably incurred by the Company, or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that the only
information that the Underwriter has furnished to the Company expressly for
use
in the Registration Statement or any Prospectus is the marketing name of the
Underwriter set forth on the cover page of each Prospectus. The indemnity
agreement set forth in this Section 8(b) shall be in addition to any liabilities
that the Underwriter may otherwise have.
(c)
Notifications
and Other Indemnification Procedures.
Promptly
after receipt by an indemnified party under this Section 8 of notice
of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from
liability under paragraph (a) or (b) above unless and to the extent
it did
not otherwise learn of such action and such failure results in the forfeiture
by
the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party
from
any liability which it may have for contribution or any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. In
case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party
and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action
or
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the
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(d)
Settlements.
The
indemnifying party under this Section 8 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (i) includes an unconditional release of such indemnified party from
all
liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified
party.
Section
9. Termination
of this Agreement.
Prior
to
the Closing Date this Agreement may be terminated by the Underwriter by notice
given to the Company if at any time (i) trading or quotation in any of the
Company’s securities shall have been suspended or limited by the Commission, by
the Nasdaq Stock Market, Inc.
or by
the VSE, or trading in securities generally on the New York Stock Exchange
or
the Nasdaq Stock Market, Inc. or the VSE shall have been suspended or limited,
or minimum or maximum prices shall have been generally established on any of
such stock exchanges by the Commission, the NASD, the VSE or the FMA; (ii)
a
general banking moratorium shall have been declared by Austrian, United States
federal or New York authorities or
a
material disruption in commercial banking or securities settlement or clearance
services in Austria or the United States has occurred;
or
(iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity, or any change in Austria,
the United States or international financial markets, or any substantial change
or development involving a prospective substantial change in Austrian, United
States’ or international political, financial or economic conditions, as in the
sole judgment of the
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Section
10. Representations
and Indemnities to Survive Delivery.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the Underwriter set forth
in
or made pursuant to this Agreement (i) will remain operative and in full force
and effect, regardless of any (A) investigation, or statement as to the results
thereof, made by or on behalf of the Underwriter, the officers or employees
of
the Underwriter, or the
Company, the officers or employees of the Company, or any person controlling
the
Company, as
the
case may be or (B) acceptance of the ADCs and payment for them hereunder and
(ii) will survive delivery of and payment for the ADCs sold hereunder and any
termination of this Agreement.
Section
11. Notices.
All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
If
to the
Underwriter:
Bank
Austria Creditanstalt AG
c/o
CA IB
Corporate Finance Beratungs Ges.m.b.H.
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇
▇-▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇▇▇-▇▇▇▇▇
Attention:
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
If
to the
Company:
Century
Casinos Inc.
c/o
Century Casinos Europe GmbH
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Facsimile:
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention:
▇▇▇▇▇ Haitzmann and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Any
party
hereto may change the address for receipt of communications by giving written
notice to the others.
Section
12. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and to the benefit of (i) the Company, its directors, any person who controls
the Company within the meaning of the Securities Act and the Exchange Act and
any officer of the Company who signs the Registration Statement, (ii) the
Underwriter, the officers,
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Section
13. Partial
Unenforceability.
Should
any provision of this Agreement be or become invalid either in whole or in
part,
the other provisions of this Agreement shall remain in force. It is understood
by the parties hereto that any invalid provision shall be replaced by a valid
provision which accomplishes as far as legally possible the economic effects
of
the invalid provision.
Section
14. Governing
Law Provision;
Jurisdiction.
(a)
Governing
Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
AUSTRIA.
(a) Jurisdiction.
Each
party to this Agreement hereby irrevocably (i) agrees that any suit, action
or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby may be instituted in any competent court in Vienna, First
District, (ii) waives, to the fullest extent permitted by law, any objection
which may be raised based on improper venue or forum
non conveniens
to the
conduct of any such suit, action or proceeding in any such court and (iii)
submits to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding.
Section
15. General
Provisions.
This
Agreement constitutes the entire agreement of the parties to this Agreement
and
supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof,
except that Section IX of the Mandate Agreement shall survive the termination
of
this Agreement. This Agreement may be executed in two or more counterparts,
each
one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be
amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing
by
each party whom the condition is meant to benefit. The Section headings herein
are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
Each
of
the parties hereto acknowledges that it is a sophisticated business person
who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 8 and is fully informed regarding said provisions. Each of the
parties hereto further acknowledges that the provisions of Section 8 fairly
allocate the risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement and the Prospectuses,
as
required by applicable laws.
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If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
Very
truly yours,
CENTURY
CASINOS, INC.
| /s/ ▇▇▇▇▇ Haitzmann | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
|
|
|
||
| Name:▇▇▇▇▇
Haitzmann Title: Chairman of the Board and Co-Chief Executive Officer |
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Vice Chairman of the Board, Co-Chief Executive Officer and President |
The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Underwriter as of the date first above written.
BANK
AUSTRIA CREDITANSTALT AG
| /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇▇ Brigelhuber | ||
|
|
|
||
| Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Title: Managing Director |
Name:
▇▇▇▇▇▇▇ Brigelhuber Title: Managing Director |
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