Exhibit 2.4
RESTRUCTURING AGREEMENT
THIS AGREEMENT dated ___, 2000, is by and among Sea Containers Ltd., a
Bermuda company ("SCL"), Orient Express Hotels Ltd., a Bermuda company
("XXXX"), Orient Express Hotels Inc., a Delaware corporation ("OEHI"), Orient
Express Properties Inc., a Delaware corporation ("OEP"), Sea Containers U.K.
Ltd., a United Kingdom company ("SCUK"), Sea Containers British Isles Ltd., a
United Kingdom company ("SCBI"), and Orient-Express Hotels UK Ltd., a United
Kingdom company ("OEHUK").
WHEREAS, the parties mutually desire that, at the Closing Date (as such
term is defined hereunder):
(i) OEHI will sell to SCL all of the capital stock of Sea Containers
America Inc., a Delaware corporation ("SCAM"), thereby selling to SCL the
subsidiaries of SCAM (as listed on Schedule 1.1 hereto);
(ii) after giving effect to the sale of SCAM, OEHI will transfer to OEP
all of its assets, which are comprised of the capital stock of the remaining
subsidiaries of OEHI (as listed on Schedule 2.1 hereto);
(iii) SCL will sell to XXXX all of the capital stock of certain of its
wholly-owned subsidiaries, and its shares of stock in certain less than
wholly-owned subsidiaries, which are engaged in the hotel and leisure
businesses (as listed in Schedule 3.1 hereto);
(iv) SCUK will transfer to OEHUK all of the capital stock of certain of
its wholly-owned subsidiaries which are engaged in the hotel and leisure
businesses (as listed on Schedule 4.1 hereto);
(v) SCBI will transfer to OEHUK all of the capital stock of certain of
its wholly-owned subsidiaries which are engaged in the hotel and leisure
businesses (as listed on Schedule 5.1 hereto);
(vi) SCUK will sell to XXXX all of the capital stock of OEHUK, thereby
selling to XXXX the subsidiaries of OEHUK (as listed on Schedule 6.1 hereto);
and
(vii) [description of Ferrocarril Transandino transfer to come];
NOW THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, the parties hereby agree as follows:
SECTION 1. SALE FROM OEHI TO SCL.
1.1 On the Closing Date, OEHI will sell and deliver to SCL, and SCL will
buy and receive from OEHI, all of the right, title and interest of OEHI in
and to the capital stock of SCAM. (The subsidiaries of SCAM are listed on
Schedule 1.1 hereto).
SECTION 2. TRANSFER FROM OEHI TO OEP.
2.1 On the Closing Date, after giving effect to the sale described in
Section 1.1, OEHI will transfer and deliver to OEP, and OEP will accept and
receive from OEHI, for payment of no consideration, all of the right, title
and interest of OEHI in and to all of the assets of OEHI, which consist of
the capital stock of the entities listed on Schedule 2.1 hereto.
SECTION 3. SALE FROM SCL TO XXXX.
3.1 On the Closing Date, SCL will sell and deliver to XXXX, and XXXX
will buy and receive from SCL, all of the right, title and interest of SCL in
and to the capital stock of the entities listed on Schedule 3.1 hereto.
SECTION 4. TRANSFER FROM SCUK TO OEHUK.
4.1 On the Closing Date, SCUK will transfer and deliver to OEHUK, and
OEHUK will accept and receive from SCUK, for payment of no consideration, all
of the right, title and interest of SCUK in and to the capital stock of the
entities listed on Schedule 4.1 hereto.
SECTION 5. TRANSFER FROM SCBI TO OEHUK.
5.1 On the Closing Date, SCBI will transfer and deliver to OEHUK, and
OEHUK will accept and receive from SCBI, for payment of no consideration, all
of the right, title and interest of SCBI in and to the capital stock of the
entities listed on Schedule 5.1 hereto.
SECTION 6. SALE FROM SCUK TO XXXX.
6.1 On the Closing Date, and after giving effect to the transfers
described in Sections 4.1 and 5.1, SCUK will sell and deliver to XXXX, and
XXXX will buy and receive from SCUK, all of the right, title and interest of
SCUK in and to the capital stock of OEHUK. (The subsidiaries of OEHUK, after
giving effect to the transfers described in Sections 4.1 and 5.1, are listed
on Schedule 6.1 hereto.)
SECTION 7. FERROCARRIL TRANSANDINO S.A. (PERU).
[To come]
- 2 -
SECTION 8. PAYMENT.
8.1 On the Closing Date, at the direction of OEHI, SCL will pay to OEP,
and OEP will receive, $_____________ in cash as the purchase price for the
purchase and sale described in Section 1.1.
8.2 On the Closing Date, XXXX will pay to SCL, and SCL will receive on
behalf of itself and SCUK, as the purchase price for the purchases and sales
described in Sections 3.1, 6.1, 7.1, and 8, [16.7] million Class A common
shares of XXXX and [14.7] million Class B common shares of XXXX, having an
aggregate agreed value of $_______________.
SECTION 9. REPRESENTATIONS AND WARRANTIES.
9.1 Each party hereto represents and warrants to all of the other
parties hereto that:
(a) the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of such party;
(b) this Agreement constitutes the legal, valid and binding
obligation of such party;
(c) this Agreement does not constitute, and the execution, delivery
and performance of this Agreement will not result in, any violation of the
articles of incorporation, by-laws or similar documents of such party or of
any judgment, decree or agreement to which it is a party or by which it is
bound; and
(d) all necessary authorizations of the transactions contemplated by
this Agreement required to be obtained by such party from any government,
foreign and domestic, Federal, State or local, have been obtained.
9.2 Each transferor and seller named in Sections 1 through 7 (each, a
"Transferor") hereby represents and warrants to its transferee or buyer
(each, a "Transferee"), as the case may be, that the shares of capital stock
transferred and sold pursuant to Sections 1 through 7 are validly issued,
fully paid and nonassessable.
9.3 Additional representations and warranties are set out in footnotes
to the Schedules to this Agreement.
SECTION 10 INDEMNITIES.
10.1 Each Transferee hereby agrees to indemnify and save harmless its
Transferor from any liability, damage, cost or expense, including reasonable
attorneys' fees, arising from the status
- 3 -
of such Transferor as a shareholder or stockholder of the entities
transferred or sold by such Transferor hereunder.
SECTION 11. CLOSING.
11.1 The closing hereunder (the "Closing") will take place at 12:00
noon, Bermuda time, on July [ ], 2000 (the "Closing Date"), at the offices of
SCL, 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
SECTION 12. NOTICES.
12.1 Any notice, consent, invoice, approval or payment required or
permitted to be given or sent hereunder must be in writing and delivered
personally or by mail (registered or certified, return receipt requested),
Federal Express or equivalent courier service, or given by facsimile or
telecopy. All notices sent in accordance with this Section shall be effective
only if and when received by the party to be notified. For purposes of
notice, the address of the parties shall be as set forth below or as may be
designated in writing from time to time:
(a) If to SCL, SCUK, SCBI or OEHUK, to:
Sea Containers Services Ltd.
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xx. Xxxxxx X. X'Xxxxxxxx and
Xxxxx X. Xxxxxxxxxxxx, Esq.
Telecopier: 0000-000-0000
(b) If to XXXX, OEHI or OEP, to:
Orient-Express Hotels Ltd.
c/o Orient Express Services Ltd.
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xx. Xxxxx X.X. Xxxxxxxx and
Xxxxx X. Xxxxxxxxxxxx, Esq.
Telecopier: 0000-000-0000
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
- 4 -
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: 000-000-0000
SECTION 13 MISCELLANEOUS.
13.1 At and subsequent to the Closing, each party transferring or
selling shares of capital stock hereunder will deliver such additional
instruments of assignment and transfer as its transferee may reasonably
require to vest in such member all right, title and interest in and to such
shares. Each of the parties shall do, execute and take all necessary and
reasonable actions, and perform all such documents, acts and things as may be
reasonably within its power to give effect to the provisions of this
Agreement and to procure that such provisions are observed and performed.
13.2 This Agreement may be amended, modified or supplemented only by a
written instrument executed by an authorized signatory of each of the parties
hereto. Any modification or variation of this Agreement other than in
accordance with this Section shall be null and void.
13.3 This Agreement may not be assigned in whole or in part by any party
hereto without the prior written consent of the other parties. Any attempted
or purported assignment by any party other than in accordance with this
Section shall be null and void.
13.4 This Agreement may be executed in any number of counterparts, and
by any party on separate counterparts, each of which as so executed and
delivered shall be deemed an original but all of which together shall
constitute one and the same instrument, and it shall not be necessary in
making proof of this Agreement as to any party hereto to produce or account
for more than one such counterpart executed and delivered by such party.
SECTION 14. PROPER LAW AND JURISDICTION.
14.1 This Agreement shall be governed by and construed in accordance
with the internal substantive laws of the Island of Bermuda.
14.2 If any party shall have the right to seek recourse to a court with
respect to any dispute arising out of or related to this Agreement or the
transactions contained in or contemplated by this Agreement, whether in tort
or contract or at law or in equity, then any action or proceeding in respect
of any such dispute shall be brought exclusively in the Courts of the Islands
of Bermuda.
- 5 -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on ______ , 2000.
SEA CONTAINERS LTD. ORIENT EXPRESS HOTELS LTD.
By: By:
---------------------------- -----------------------------
Name: Name:
Title: Title:
ORIENT EXPRESS HOTELS INC. ORIENT EXPRESS PROPERTIES INC.
By: By:
---------------------------- -----------------------------
Name: Name:
Title: Title:
SEA CONTAINERS U.K. LTD. SEA CONTAINERS BRITISH ISLES LTD.
By: By:
---------------------------- -----------------------------
Name: Name:
Title: Title:
ORIENT-EXPRESS HOTELS UK LTD.
By:
---------------------------
Name:
Title:
- 6 -
SCHEDULE 1.1
SCAM AND ITS SUBSIDIARIES(1)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
------------------------------------------------ ------------------- ---------------------
Sea Containers America Inc. Delaware
Charleston Container Shops Inc. Delaware
Charleston Marine Containers Inc. Delaware
Houston Marine Containers Inc. Delaware
SeaCo Texas Properties Inc. Delaware
Sea Containers West Inc. Delaware
SeaStreak America Inc. Delaware
GE Seaco America LLC Delaware 50%
Sea Containers Agencies Inc. Delaware
Sea Containers Caribbean Inc. Delaware
Sea Containers U.S. Gulf Inc. Delaware
Sea Containers South Atlantic Inc. Delaware
Highlands Landing Corp. Delaware
----------------------------
(1) OEHI represents and warrants to SCL as follows: SCAM is a direct
wholly-owned subsidiary of OEHI. All of the other companies listed on this
Schedule 1.1 are direct wholly-owned subsidiaries of SCAM, except as otherwise
noted in the column captioned "% of Ownership, If Less Than 100%".
SCHEDULE 2.1
SUBSIDIARIES OF OEHI (AFTER SECTION 1.1)(2)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
-------------------------------------------- ---------------- -----------------
Windsor Court Hotel Inc. Delaware
Windsor Court Hotel L.P. Delaware 5%
'21' Club Properties Inc. Delaware
'21' Club Inc. New York
Hotel Cipriani Inc. Delaware
Europa Leisure and Health Tours Ltd. U.K.
Harry's Bar Ltd. U.K. 49%
Mountbay Holdings Inc. Delaware
Inn at Perry Cabin Corp. Maryland
Keswick Hall Inc. Virginia
Keswick Corporation Virginia
Keswick Utilities Inc. Virginia
Orient-Express Bahamas Properties Inc. Delaware
Orient Express Services Inc. Delaware
Venice Simplon-Orient-Express Inc. Delaware
Orient-Express Hotels Louisiana Inc. Delaware
Charleston Place Holdings Inc. Delaware
Charleston Center LLC Delaware 19.9%
Eastern & Oriental Express Ltd. Bermuda 25%
E&O Services Singapore Pte., Ltd. Singapore
E&O Services Thailand Co., Ltd. Thailand
Etablissement Vanderelst Xxxxxxxxxxxx 46.7%
----------------------------
(2) OEHI represents and warrants to OEP as follows: After giving effect to
Section 1.1, the companies listed in this Schedule 2.1 will constitute all of
the direct and indirect subsidiaries of OEHI. Direct subsidiaries are listed in
the first column, and, in the case of each indirect subsidiary, its name is
indented and is listed immediately below its direct corporate parent. The common
shares of each company listed are owned 100% by such company's direct corporate
parent, except as otherwise noted in the column captioned "% of Ownership, If
Less Than 100%".
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
-------------------------------------------- ---------------- -----------------
Orient-Express Hotels Pacific Ltd. Hong Kong
Orient-Express Hotels Asia Ltd. Hong Kong
Orient-Express Holdings Ltd. U.K.
Venice Simplon-Orient Express U.K. 36%
Ltd.
Sea Containers Pacific Inc. Delaware
Orient-Express Hotels Ltd. Japan
SCHEDULE 3.1
SUBSIDIARIES OF SCL TO BE SOLD TO XXXX(3)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
-------------------------------------------- ---------------- -----------------
Companhia Hoteis Palace Brazil 93.2%
Windsor Court New Orleans Properties Ltd. Bermuda
Windsor Great Park Inc. Delaware
Windsor Court Hotel L.P. Delaware 95%
Leisure Holdings Asia Ltd. Bermuda
Myanmar Hotels and Cruises Ltd. Myanmar
Vessel Holdings 2 Ltd. Bermuda
Sea Containers Peru Rail Ltd. Bermuda
Sea Containers Peru Holdings S.A. Peru
Meviasur SAC Peru 50%
PeruRail SA Peru 50%
---------------------------
(3) SCL represents and warrants to XXXX as follows: All of the companies
listed in this Schedule 3.1 are direct or indirect subsidiaries of SCL. Direct
subsidiaries are listed in the first column, and, in the case of each indirect
subsidiary, its name is indented and is listed immediately below its direct
corporate parent. The common shares of each company listed are owned 100% by
such company's direct corporate parent, except as otherwise noted in the column
captioned "% of Ownership, If Less Than 100%".
SCHEDULE 4.1
SUBSIDIARIES OF SCUK TO BE TRANSFERRED TO OEHUK(4)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
-------------------------------------------- ---------------- -----------------
Collection Venice
Simplon-Orient-Express Ltd. U.K.
Orient-Express Ltd. U.K.
Orient-Express Services Ltd. U.K.
Venice Simplon-Orient-Express
Tours Ltd. U.K.
----------------------------
(4) SCUK represents and warrants to OEHUK that all of the companies listed
on this Schedule 4.1 are direct wholly-owned subsidiaries of SCUK.
SCHEDULE 5.1
SUBSIDIARIES OF SCBI TO BE TRANSFERRED TO OEHUK(5)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
-------------------------------------------- ---------------- -----------------
Reids Hotel Madeira Limited U.K.
Regency Rail Cruises Ltd. U.K.
Horatio Properties Ltd. U.K.
Blejan Investments (Pty) Limited South Africa
Egerland Investments (Pty) Ltd. South Africa
Fraser Helmsley Properties (Pty) Ltd. South Africa
Helmsley Motor Inn (Pty) Ltd. South Africa
Mount Xxxxxx Hotel Ltd. U.K.
Mount Xxxxxx Commercial Properties South Africa
(Pty) Ltd.
Mount Xxxxxx Residential Properties South Africa
(Pty) Ltd.
----------------------------
(5) SCBI represents and warrants to OEHUK as follows: Reids Hotel Madeira
Limited, Regency Rail Cruises Ltd. (UK) and Horatio Properties Ltd. are
wholly-owned subsidiaries of SCBI. All of the other companies listed on this
Schedule 5.1 are wholly-owned subsidiaries of Horatio Properties Ltd.
SCHEDULE 6.1
OEHUK AND ITS SUBSIDIARIES (AFTER SECTIONS 4.1 AND 5.1)(6)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
-------------------------------------------- ---------------- -----------------
Orient-Express Hotels UK Ltd. U.K.
Air Xaxaba (Pty) Ltd. Botswana
Exclusive Destinations (Pty) Ltd. South Africa
Orient Express Hotels Botswana Ltd. Bermuda
Signature Boutique Ltda. Brazil
Xaxaba Camp (Pty) Ltd. Botswana
Game Viewers (Pty) Ltd. Botswana
Game Trackers (Botswana) (Pty) Botswana
Ltd.
Reids Hotel Madeira Limited U.K.
Regency Rail Cruises Ltd. U.K.
Horatio Properties Ltd. U.K.
Blejan Investments (Pty) South Africa
Limited
Egerland Investments (Pty) Ltd. South Africa
Fraser Helmsley Properties South Africa
(Pty)Ltd.
Helmsley Motor Inn (Pty) Ltd. South Africa
Mount Xxxxxx Hotel Ltd. U.K.
Mount Xxxxxx Commercial South Africa
Properties (Pty) Ltd.
Mount Xxxxxx Residential South Africa
Properties (Pty) Ltd.
Collection Venice Simplon-Orient-Express
Ltd. U.K.
Orient-Express Ltd. U.K.
Orient-Express Services Ltd. U.K.
Venice Simplon-Orient-Express Tours Ltd. U.K.
----------------------------
(6) SCUK represents and warrants to XXXX as follows: After giving effect to
Sections 4.1 and 5.1, all of the companies listed in this Schedule 6.1 will be
direct or indirect subsidiaries of SCUK. Direct subsidiaries are listed in the
first column, and, in the case of each indirect subsidiary, its name is indented
and is listed immediately below its direct corporate parent. The common shares
of each company listed will be owned 100% by such company's direct corporate
parent, except as otherwise noted in the column captioned "% of Ownership, If
Less Than 100%".
