entered into by
and between
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1)
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CA IB Corporate
Finance Beratungs Ges.m.b.H. ("CA IB")
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acting for Bank
Austria Creditanstalt AG ("BA-CA") by virtue of a general
mandate,
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2)
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Century Casinos
Inc., (the “Company”)
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Colorado
Springs, Colorado
PREAMBLE
This Agreement
shall govern, in principle, the legal relationship between the
parties in connection with the proposed listing on the Vienna Stock
Exchange (“VSE”) and placement of Austrian Depositary
Certificates (“ADCs”) representing shares of the
Company by way of a public offering in Austria and international
private placements. The placement volume shall be approx. EUR 40
million, in addition, the possibility of providing for an
over-allotment option of 10% to 15% of the placement volume will be
investigated (the “Transaction"). However, the placement
volume and the over-allotment option, together, shall not exceed
the equivalent of USD 50 million. The parties envisage the
placement to be executed in autumn 2005 based on the consolidated
financial statements of the Company as of June 30, 2005. The final
terms of the Transaction will be agreed among the parties in an
underwriting agreement (the "Underwriting Agreement"), having
regard to prevailing market conditions.
Given
appropriate market conditions and provided the due diligence review
produces satisfying results, an SAS 72 comfort letter is issued by
the Company’s auditors and a 10 b5 legal opinion is issued by
Company’s counsel in a form and substance satisfactory for CA
IB, and the prospectus to be drafted in accordance with the EU
Regulation nr. 809/2004 (the “Prospectus”) has been
approved by the Austrian Financial Authority (“FMA”),
it is proposed to carry out the Transaction as soon as practicable
thereafter.
The Company
mandates CA IB and its affiliates (collectively "CA IB") as Sole
Bookrunner and Lead-Manager of the Transaction. It is agreed that
no other bank will be involved in the Transaction.
The features
and terms of the placement of shares and the underwriting
commitment by CA IB will be governed by the Underwriting Agreement.
The provisions set forth in this Mandate Agreement shall
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a)
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not constitute
a binding obligation of CA IB or another member of the Bank
Austria/HVB group to carry out the Transaction, execute the
Underwriting Agreement in connection with the Transaction or
underwrite or subscribe to the securities,
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b)
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not constitute
a responsibility of CA IB or any other member of the Bank
Austria/HVB Group for any act or omission of any of the Company's
other advisors, and
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c)
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shall not limit
the future terms of the Underwriting Agreement; it is, however,
understood that the Underwriting Agreement will not provide for
commissions exceeding the amounts specified in section V of this
Mandate Agreement or contain any provisions, in particular
representations and warranties, which would be unusual for equity
offerings in Austria or internationally.
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I.
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RESPONSIBILITIES/DUTIES OF CA
IB
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In connection with preparing and consummating
the Transaction, CA IB will in particular:
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a)
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review and
assess, in cooperation with the Company’s US-counsel Faegre
& Benson LLP, Dorda, Brugger, Jordis as the transaction counsel
as well as Shearman & Sterling as the CA IB’s
counsel, the Company's legal relations, operations, assets and
liabilities, financial condition and results of operation as well
as its business prospects on the basis of information provided by
the Company itself or on its behalf;
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b)
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coordinate
between the Company and the relevant advisors (attorneys, auditors,
public relations consultants) which may be necessary for the
purpose of the due diligence and the execution of the
Transaction;
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c)
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participate in
the preparation of an offering circular in accordance with
Regulation nr. 809/2004 (Prospectus Directive) (the
“Prospectus”) for which the Company is responsible,
which has to be approved by FMA prior to application for listing on
VSE;
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d)
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support the
Company and its advisors, in drawing up all necessary documents,
agreements and contracts in connection with the
Transaction;
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e)
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advise the
Company on other areas, if any, to be agreed upon, which are
necessary in connection with the Transaction;
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f)
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coordinate with
FMA the process of approving the Prospectus, with VSE the admission
process and with Oesterreichische Kontrollbank (“OeKB”)
the structure for establishing and implementing the ADCs with the
necessary deposits in the United States and act as the listing
agent for the Company;
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g)
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advise the
Company on reasonable marketing measures and draft the roadshow
presentation in cooperation with the Company;
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h)
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advise the
Company on and procure on their behalf the necessary notices and
publications prescribed by law;
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i)
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prepare and
carry out as the Sole Bookrunner and Lead Manager the placement of
the ADCs in Austria and internationally;
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j)
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coordinate with
the Company on a current basis all activities in connection with
the preparation and consummation of the Transaction and inform the
Company on any development which may materially affect the
Transaction;
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k)
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during the
bookbuilding procedure and within the scope of statutory and
regulatory provisions keep the Company posted of developments in
demand, the composition of investors, and price
sensitivities;
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l)
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fix an optimal
offer price in cooperation with the Company after the bookbuilding
procedure and carry out the allotment, it being well understood
that the Transaction will be marketed as an “at market
bookbuilt offering”;
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m)
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issue a written
undertaking to VSE that it will act as market maker
(“Specialist”) for the Company’s ADCs.
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The Company
agrees that CA IB’s consulting activities shall be limited
only to the Transaction hereunder and may not be used for any other
purpose or be applied as assessment basis in any other context. CA
IB will not provide any consulting services which are usually
provided to the Company (e.g. for legal matters, accounting and tax
issues) by other advisors or regarding US-related matters in
connection with the Transaction, and does not accept responsibility
for such consulting services. In addition, the Company undertakes
not to agree on any liability waiver relating to audit, tax, legal,
regulatory, insurance and other issues in connection with the
Transaction in the mandate agreements with their advisors, except
with the written consent of CA IB.
II.
RESPONSIBILITIES/DUTIES OF THE COMPANY
In the course
of preparing the Transaction the Company will make available any
information, document and proof which may be necessary to prepare
the documentation (e.g. the Prospectus), the due diligence review,
the issuance of the SAS 72 comfort letter and the 10b5 legal
opinion.
In addition, CA
IB may directly approach the management of the Company and of its
affiliates as well as employees (after adequate advance notice to
the CEOs of the Company of CA IB’s intent to do so) and
advisors (in particular attorneys, auditors) to obtain the
information it considers necessary.
CA IB may rely
on the accuracy, correctness and completeness of such information
provided by the Company or originating from public sources, unless
such documents are evidently false or incomplete. CA IB is not
obliged to review the accuracy, correctness or completeness of such
information and is not liable towards the Company for the use of
such information.
The Company
undertakes to comply with all US -, Austrian - and other applicable
securities laws in connection with the Transaction and to
establish appropriate clearing facilities in order to effect the
settlement of the Transaction as well as trading on VSE.
In addition,
the Company undertakes to fulfill any obligations which may be
necessary for the admission to listing and trading in the prime
market segment on the Vienna Stock Excha
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