Contract
Exhibit
10.2
This
VOTING AGREEMENT (this “Agreement”), dated as of March 20, 2006, is
entered into by and among Xxxxxxx International Limited, an international
business company incorporated under the laws of The Commonwealth of The Bahamas
(the “Company”), Xxxxxxx Xxxxxxx (“SK”), Xxxxxx X. Xxxxxxx
(“HBK”) and World Leisure Group Limited, a company incorporated under the
laws of the British Virgin Islands (“WLGL”, and together with SK and HBK,
the “Holders”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company
has
entered into an Agreement and Plan of Merger (as may be amended from time
to
time, the “Merger Agreement”) with K-Two Holdco Limited, and K-Two Subco
Limited (“Merger Sub”), dated as of the date hereof, pursuant to which,
upon the terms and subject to the conditions set forth therein, Merger Sub
will
merge with and into the Company, with the Company as the surviving
corporation;
WHEREAS,
the Holders beneficially own 3,795,794 Ordinary Shares (excluding Company
Restricted Shares) (collectively, together with any Ordinary Shares subsequently
acquired, the “Subject Shares”);
WHEREAS,
as a condition to the willingness of the Company to enter into the Merger
Agreement, and as an inducement and in consideration therefor, the Company
has
required that the Holders agree, and the Holders have agreed, to enter into
this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises, covenants
and agreements contained in this Agreement, the parties intending to be legally
bound, hereby agree as follows:
ARTICLE
I
VOTING
Section
1.1. Agreement to
Vote. (a) At the Company Shareholder Meeting (or any adjournment or
postponement thereof) or in any other circumstances upon which a vote, consent
or other approval (including a written consent) with respect to the Merger
Agreement, the Merger or any other transaction contemplated by the Merger
Agreement is sought, the Holders shall vote or execute consents with respect
to
(or cause to be voted or consents to be executed with respect to) all Subject
Shares beneficially owned as of the applicable record date in favor of the
approval of the Merger Agreement, the Merger and any other transaction
contemplated by the Merger Agreement.
(b) In
the event that the
Merger Agreement is terminated by the Company pursuant to Section 9.1(c)(ii)
thereof in order for the Company to enter into a definitive agreement with
respect to a Superior Alternative Transaction (as defined below), at a meeting
of Company shareholders (or any adjournment or postponement thereof) called
to
seek the approval of a Superior Alternative Transaction Proposal in connection
with such Superior Alternative Transaction by shareholders of the Company
or in
any other circumstances upon which a vote, consent or other approval (including
a written consent) with respect to a Superior Alternative Transaction Proposal
in connection with such Superior Alternative Transaction is sought, the
Holders
shall vote, or execute consents with respect to, (or cause to be voted or
consents to be executed with respect to) all Subject Shares beneficially
owned
as of the applicable record date in favor of such Superior Alternative
Transaction Proposal. In the event any Superior Alternative Transaction is
structured as a tender or exchange offer, the Holders will (i) accept such
offer with respect to all the Subject Shares and tender or exchange, as
applicable, all the Subject Shares pursuant to such offer and (ii) not withdraw
any Subject Shares tendered pursuant to such offer.
Section
1.2. Further
Assurances. Each Holder shall, from time to time, execute and deliver, or
cause to be executed and delivered, such additional or further consents,
documents and other instruments as the Company may reasonably request for
the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
Section
1.3. Transfers. (a)
Until the earlier of (i) the obtaining of the Requisite Shareholder Vote
and
(ii) the termination of the Merger Agreement in accordance with its terms
(the
“Voting Period”), the Holders shall not except as contemplated by this
Section 1.3, sell, transfer, pledge, assign or otherwise dispose of (including
by gift) (collectively, “Transfer”), or enter into any Contract, option
or other arrangement (including, without limitation, any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any Person
other than pursuant to the Merger. Notwithstanding the foregoing, the Holders
may Transfer any Subject Shares to any of their respective Affiliates controlled
by SK or HBK (“Affiliate Transferee”), provided that the effectiveness of
any such Transfers shall be conditioned on the transferee agreeing in writing
to
be bound by the provisions of this Agreement in a form reasonably satisfactory
to the Company.
(b) From
and
after the Voting Period, the Holders may Transfer any Subject Shares to any
Affiliate Transferee or any other Person, provided that the effectiveness
of any
such Transfers shall be conditioned on the transferee agreeing to be bound
by
the provisions of this Agreement in a form reasonably satisfactory to the
Company.
Section
1.4. Voting
Arrangements. Except for this Agreement, the Holders shall not enter into
any voting arrangement, whether by proxy, voting agreement or otherwise,
with
respect to any Subject Shares and shall not commit or agree to take any of
the
foregoing actions.
Section
1.5. Representations.
The Holders represent and warrant to the Company that the Subject Shares
collectively represent all Ordinary Shares owned beneficially (determined
for
the purposes of this paragraph as set forth in Rule 13d-3 promulgated under
the Exchange Act) or of record by any Holder or by a trust of which any Holder
is a trustee. Collectively, the Holders have the sole right to vote the Subject
Shares, and none of the Subject Shares is subject to any voting trust or
other
agreement, arrangement or restriction with respect to the voting of the Subject
Shares, except as contemplated by this Agreement. No trust of which a Holder
is
a trustee requires the consent of any beneficiary to the execution and delivery
of this Agreement or to the consummation of the transactions contemplated
hereby.
Section
1.6. Definitions. For
purposes of the foregoing:
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(a) “Superior
Alternative Transaction” means a Superior Proposal pursuant to which all
Ordinary Shares outstanding immediately prior to the consummation of such
transaction shall be purchased for or be converted into an amount in cash
equal
to no less than the sum of (x) the Merger Consideration and (y) $2.00. For
the
avoidance of doubt, a Superior Alternative Transaction Proposal shall not
include a Superior Proposal effected other than in a single transaction or
a
series of related transactions, the consummation of each of which is expressly
conditioned on the consummation of each other related transaction, and all
of
which are in fact consummated concurrently. In the event that a Superior
Proposal is effected in a series of related transactions, any amendment,
modification or waiver of any of the conditions that the consummation of
each
such transaction is expressly conditioned on the consummation of each other
related transaction or of the requirement that such transactions are consummated
concurrently shall be approved in writing in advance by each of SK and
HBK.
(b) “Superior
Alternative Transaction Proposal” means any proposal to approve a Superior
Alternative Transaction (or any proposal to approve a definitive agreement
relating thereto) at a meeting of Company shareholders or in any other manner
(by written consent or otherwise).
ARTICLE
II
MISCELLANEOUS
Section
2.1. Defined Terms.
Capitalized terms that are used but not otherwise defined herein shall have
the
respective meanings ascribed to them in the Merger Agreement.
Section
2.2. Notices. All
notices, requests and other communications to any part hereunder shall be
in
writing (including facsimile or similar writing) and shall be
given:
if
to the
Holders, to:
x/x
Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
Attention:
Xxxxxxx X. Xxxxxx
Fax:
x0
000 000 0000
if
to the
Company, to:
Xxxxxxx
International Limited
000
Xxxxx
Xxxxxx -- Xxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxx
Fax:
(000) 000-0000
Section
2.3. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of
the State of Delaware.
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Section
2.4. Jurisdiction.
Each party irrevocably submits to the jurisdiction of (a) any Delaware State
court, and (b) any Federal court of the United States sitting in the State
of
Delaware, solely for the purposes of any suit, action or other proceeding
between any of the parties hereto arising out of this Agreement or any
transaction contemplated hereby. Each party agrees to commence any suit,
action
or proceeding relating hereto either in any Federal court of the United States
sitting in the State of Delaware or, if such suit, action or other proceeding
may not be brought in such court for reasons of subject matter jurisdiction,
in
any Delaware State court. Each party irrevocably and unconditionally waives
any
objection to the laying of venue of any suit, action or proceeding between
any
of the parties hereto arising out of this Agreement or any transaction
contemplated hereby in (i) any Delaware State court, and (ii) any Federal
court
of the United States sitting in the State of Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any
such court that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum. Each party further irrevocably
consents to the service of process out of any of the aforementioned courts
in
any such suit, action or other proceeding by the mailing of copies thereof
by
registered mail to such party at its address set forth in this Agreement,
such
service of process to be effective upon acknowledgment of receipt of such
registered mail; provided that nothing in this Section 2.4 shall affect the
right of any party to serve legal process in any other manner permitted by
law.
The consent to jurisdiction set forth in this Section 2.4 shall not constitute
a
general consent to service of process in the State of Delaware and shall
have no
effect for any purpose except as provided in this Section 2.4. The parties
agree
that a final judgment in any such suit, action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any
other manner provided by law. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT
ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF
OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS
WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY
HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION
2.4.
Section
2.5. Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by virtue of any Law, or due to any public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties
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as
closely as possible in an acceptable manner so that the transactions
contemplated hereby are fulfilled to the extent possible.
Section
2.6. Assignment.
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, provided
that
no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other parties
hereto.
Section
2.7. Counterparts.
This Agreement may be executed in separate counterparts, each of which shall
be
deemed an original and both of which shall constitute one and the same document.
This Agreement may be executed by facsimile signatures and in any number
of
counterparts, each of which shall be an original, with the same effect as
if the
signatures thereto and hereto were upon the same instrument.
Section
2.8. Entire
Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and may be amended
only
in a writing executed by the parties to be bound thereby.
Section
2.9 Amendment.
This Agreement may not be amended except by an instrument in writing signed
by
the parties hereto (in the case of the Company, acting through the Special
Committee, if such committee still exists, or otherwise by resolution of
a
majority of its Disinterested Directors).
Section
2.10. Termination of Agreement. This
Agreement may be terminated: (i) by the mutual written consent of the parties
hereto or (ii) by any party if the Merger Agreement is terminated for any
reason
whatsoever other than by the Company pursuant to Section 9.1(c)(ii) thereof
in
order for the Company to enter into a definitive agreement with respect to
a
Superior Alternative Transaction. In the event that the Requisite Shareholder
Approval is obtained, this Agreement shall terminate automatically without
any
further action on the part of the parties hereto.
Section
2.11. Enforcement. Each Holder agrees
that irreparable damage would occur, damages would be difficult to determine
and
would be an insufficient remedy and no other adequate remedy would exist
at law
or in equity, in each case in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached (or any party hereto threatens such a breach). Accordingly,
it is agreed that in the event of a breach or threatened breach of this
Agreement by any Holder the Company (and its successors and assigns) shall
be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, in
addition to any other remedy to which such party is entitled at law or in
equity. Each Holder irrevocably waives any defenses based on adequacy of
any
other remedy, whether at law or in equity, that might be asserted as a bar
to
the remedy of specific performance of any of the terms or provisions hereof
or
injunctive relief in any action brought therefor by the Company.
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remainder of this page is blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first written above.
| XXXXXXX INTERNATIONAL LIMITED | ||
| |
|
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| By: | /s/ Xxxx Xxxxxx | |
|
Name:
Xxxx Xxxxxx
Title:
Chairman of the Special Committee
|
||
| WORLD LEISURE GROUP LIMITED | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name: Xxxxxxx Xxxxxxx |
||
| XXXXXXX XXXXXXX | ||
| |
|
|
| /s/ Xxxxxxx Xxxxxxx | ||
| XXXXXX X. XXXXXXX | ||
| |
|
|
| /s/ Xxxxxx X. Xxxxxxx | ||
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